Findings Of Fact Sarasota County's Comprehensive Plan Amendment RU-5 was adopted, as Sarasota County Ordinance No. 91-41, on July 3, 1991. RU-5 amends the 1989 "Revised and Updated Sarasota County Comprehensive Plan," which is also known as "Apoxsee." Res Judicata and Collateral Estoppel.-- The 1989 plan, Apoxsee, is the subject of the Final Order, Hiss v. Sarasota County, ACC 90-014, DOAH Case No. 89-3380GM (the Hiss Final Order). The Hiss Final Order resulted from the Section 163.3184(9) formal administrative proceeding Hiss initiated after notice by the Department of Community Affairs (the DCA) of its determination that the adopted Sarasota County comprehensive plan was "in compliance." After a final hearing, a Division of Administrative Hearings hearing officer entered a Recommended Order on August 14, 1990, recommending that, for certain specified reasons, the plan be found to be not "in compliance." After consideration of the Recommended Order and exceptions to it filed by Hiss, by the County and by the intervenors, the DCA determined that the plan was not in compliance, concluded that, with the exception of the remedial actions recommended by the hearing officer, the Recommended Order should be adopted. The DCA submitted the Recommended Order to the Administration Commission for final agency action (the Hiss Final Order), which was taken on June 4, 1991. The Hiss Final Order recited in part 4/: PRELIMINARY STATEMENT * * * The Recommended Order divides Hiss' numerous allegations for the plan's noncompliance into four categories: the first alleging adoption in a manner inconsistent with the minimum criteria regarding public participation, the second involving the Recreation and Open Spaces Element, the third involving the Future Land Use Element and Future Land Use Map, and the fourth involving urban sprawl. The Hearing Officer concluded that the plan was in compliance with regard to the first, second and fourth of these categories. But, with regard to the third category, the Future Land Use Element and Future Land Use Map, the Hearing Officer concluded that the plan was not in compliance for a number of reasons. * * * ACTION ON THE RECOMMENDED ORDER Pursuant to Section 120.57(1)(b)10., Florida Statutes, the Commission accepts the Findings of Fact and the Conclusions of Law contained in the Recommended Order . . . with the exception of the recommended Remedial Action to the extent inconsistent with the Remedial Action ordered below. The Sarasota County comprehensive plan, therefore, is determined to be not in compliance for the reasons set forth in the Recommended Order and the following remedial action is ordered. REMEDIAL ACTION The following remedial action pursuant to the schedule in paragraph 15, below, is hereby ordered to bring the comprehensive plan of Sarasota County into compliance: * * * a. Plan amendments ordered herein shall be prepared by the County and transmitted to the Department of Community Affairs by September 30, 1991. DCA by October 15, 1991 shall certify to the Commission that the plan amendments have been received. In the event the plan amendments are not received by that date the DCA shall notify the Commission by October 31, 1991 and the Commission shall review the matter as to the appropriate action to be taken. DCA shall report to the Commission on the progress of its review of the plan amendments by February 15, 1992. DCA shall forward a recommendation to the Commission regarding the County's conformance with the remedial action ordered herein no later than June 1, 1992. SANCTIONS Under the circumstances of this case, the Commission exercises its discretion to impose no sanctions on the County at this time. The Commission retains jurisdiction, however, to consider sanctions available under Chapter 163, Florida Statutes, and to impose sanctions in the future if the County fails to comply with the remedial actions of this order. Paragraph 10 of the "Remedial Actions" portion of the Final Order, which required the County to amend Policy 1.1.2 and add or amend other appropriate objectives and policies in the Public Facilities Plan as described therein, contained the following footnote: "Clarifica- tion of the language in the amendments ordered by Remedial Action 10, so long as they do not depart from the purposes of the remedial actions ordered, may be made by the County subject to review and compliance determinations by the Department of Community Affairs and this Commission." The Walton Tract. The Walton Tract is approximately 6,151 acres of land in south central Sarasota County. It is about a mile east of Interstate 75 and is presently undeveloped with vegetation typical of the pine flatwood community. At the time Apoxsee was adopted, the County was in the process of planning for a solid waste disposal complex on the Walton Tract but had not yet identified an exact landfill site on the tract. In Apoxsee, the entire Walton Tract was identifed as the general area for the proposed Central County Solid Waste Disposal Complex, and the entire Walton Tract was designated as "Public Resource Lands." Prior Proceeding.-- In part, the Recommended Order adopted in the Hiss Final Order found: Neither the FLUM nor the FLUE designates a category of land devoted to conservation use. Designations tending to include conservation uses are Public Resource . . .. The Public Resource Lands designation is assigned to, among other parcels, the Walton Tract where any preservation or conservation uses will be subjected to the use of a part of the tract as a landfill, as discussed in Paragraphs 246 et seq. The primary provision in the plan describing the uses associated with Public Resource Lands is Policy 1.2 of the FLUE, which is "[t]o acquire and protect Public Resource Lands." In addition, FLUE Policy 1.2.3 permits environmental management practices on such lands, including controlled burning. These provisions are readily applicable to the other three parcels designated as Public Resource Lands and the part of the Walton Tract undisturbed by the landfill. However, these provisions are inconsistent with the portion of the Walton Tract proposed for use as a major landfill and other areas affected by this intensive use. * * * The inclusion of the entire Walton Tract in the Public Resource Lands is inconsistent with the proposed use of a substantial part of the tract as a major landfill. If the County eliminates this inconsistency by designating the actual landfill area and other affected areas as institutional or other public facilities, the Public Resource Lands designation would be consistent with the conservation designation. If the actual landfill area remains designated as Public Resource Lands, the designation of the Walton Tract as Public Resource Lands precludes, to the exclusion of fair debate, a finding that the Public Resource Lands designation is consistent with the criterion of a conservation designation. * * * It is fairly debatable that the plan is consistent with the criterion of a policy addressing intergovernmental coordination with respect to the conservation, protection, and appropriate use of interjurisdictional vegetative communities. With one exception, it is fairly debatable that the plan is consistent with criteria of policies addressing the protection of natural reservations and the designation of environmentally sensitive lands. [F.A.C. Rule 9J-5.013(2)(b)7. and 9.] To the exclusion of fair debate, the plan is not consistent with the latter two criteria as applied to the designation of the entire Walton Tract as Public Resource Lands, despite the intended use of part of the tract as a major landfill. The early stages of planning for the landfill may prevent the plan from dealing specifically with the likely environmental impacts of a landfill yet to be designed or sited. However, the plan should contain many of the provisions of the management plan promised for the Walton Tract. If, as the Supportive Material indicates, the landfill disturbs one-third of the Walton Tract, siting the landfill among the important environmental resources in the area is a critical task requiring more from the plan than inaccurately designating the entire tract as Public Resource Lands or promising the issuance of a management plan at some point in the future. The plan fails to provide guidelines for a detailed management plan, and guidelines are especially critical for the coordination of a major landfill with sensitive natural resources in the area. Detailed and effective safeguards in the plan for the Walton Tract and surrounding natural resources would require that the landfill project conform to these requirements. If some aspect of the landfill design prevents conformance with such plan provisions, the County may amend the plan with in [sic] compliance with all procedural requirements of the Act, including public participation and review by DCA. Absent effective provisions concerning the landfill to be placed in the Walton Tract, it is impossible to find that the plan contains policies addressing implementation activities for the protection of existing natural reservations. The Walton Tract is designated in its entirety as Public Resource Lands, and the conversion of part of this land to a landfill is not consistent with the protection of the entire tract. The same findings apply with respect to the designation of environmentally sensitive land because the Walton Tract is the site of critical natural resources, including various types of wetlands, part of Cow Pen Slough, and part of the Myakka River floodplain, as well as a bank of part of the Myakka River. * * * 402. To the exclusion of fair debate, the FLUM is not consistent with provisions to protect and acquire environmentally sensitive lands due to the conflict between the Public Resource Lands designation of the Walton Tract on the FLUM and the proposed use of part of the tract as a major landfill . . .. In part, the Recommended Order adopted in the Hiss Final Order concluded: 76. Based on the ultimate findings of fact contained in Paragraphs 366 and 367, the plan . . . is consistent with the criterion of the designation on the FLUM of proposed conservation land uses, if the designation of the part of the Walton Tract proposed for actual landfill use and any other affected area are redesignated from Public Resource Lands to another designation such as institutional or other public facilities. Otherwise, the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with the criterion of the designation on the FLUM of proposed conservation land uses. * * * Based on the ultimate findings of fact contained in Paragraphs 376 et seq., the plan is consistent with these [9J-5.013(2)(c)7.-9.] criteria with one exception. The plan is not in compliance with the Act and Chapter 9J-5 because the treatment of the entire Walton Tract is not consistent with criteria of the protection of existing natural reservations and designation of environmentally sensitive land for protection. The designation of the Walton Tract as Public Resource Lands despite the proposed use of part of the tract as a landfill demands, to the exclusion of fair debate, more specificity in the plan coordinating the land uses that will be permitted on the tract with the sensitive natural resources already there. Because of the intense use proposed for part of the tract and the proximity of important natural resources, the promise to adopt later a management plan for the Walton Tract is insufficient. . . . The proposed uses and special features of the Walton Tract require that, regardless of its future land use designation, the plan provide details of the management plan, if the plan is to contain policies addressing implementation activities for the protection of environmentally sensitive lands and existing natural reservations. [Fn. 43.--This determination remains applicable even if the County redesignates the Walton Tract as institutional or other public facilities. Although arguably redesignation could result in the tract losing its status as an existing natural reservation, the tract, or at least parts of it, would continue to represent environmentally sensitive lands, whose status is unaffected by any change in designation.] * * * 109. Based on the ultimate findings of fact contained in Paragraph 402, the plan is not in compliance with the Act and Chapter 9J-5 because the FLUM is not consistent with FLUE objectives and policies to protect and acquire environmentally sensitive lands with respect to the designation of the entire Walton Tract . . .. The Hiss Final Order required the following Remedial Action pertinent solely to the Walton Tract: 5. The County shall revise the section in the solid waste portion of the Public Facilities chapter that refers to "landfill Site Feasibility Report: Walton Tract and Central County Solid Waste Disposal Complex - Preliminary Cost Estimate" to reflect that the Walton Tract is currently only one potential location for the proposed landfill, subject to additional study. The County shall also adopt a policy requiring that at such time as a final decision is made on the location and type of solid waste treatment facility to be developed, the Future Land Use Plan Map Series and Public Facilities chapter will be amended accordingly to reflect that decision. The RU-5 Walton Tract Amendments.-- In part, RU-5 amends Figure 23, a part of the Future Land Use Map (FLUM) Series, to delineate 2,972 acres of the Walton Tract as "Public Resource Lands" and 3,179 acres of the Walton Tract as "Central County Solid Waste Disposal Complex and other Government Use." RU-5 specifically locates a proposed solid waste disposal complex on 550 acres of the 3,179 acres designated as "Central County Solid Waste Disposal Complex and other Government Use." The 2,972 acres in the Walton Tract designated as "Public Resource Lands" were zoned Open Use Conservation (OUC) by Sarasota County Ordinance 90-54. RU-5 also amends the Public Facilities Element of the Sarasota County Comprehensive Plan (Apoxsee) by adding Objective 2.6 and Policy 2.6.1. Objective 2.6 is: To develop a solid waste disposal complex and site which is economically feasible and which has minimal environmental impacts. Policy 2.6.1 states: The Central County Solid Waste Disposal Complex shall minimize, to the greatest extent possible, potential environmental impacts consistent with the adopted stipulations contained within Ordinance No. 90-54 and Resolution No. 91-149. Prior to development of the Central County Solid Waste Disposal Complex a resource based Land Management Program shall be adopted consistent with the "Principles for Evaluating Development Proposals in Native Habitats" and all other relevant policies in the Environment Chapter. The Public Facilities Supportive Material adopted as part of RU-5 states: The Board also approved a special exception for a 550 acre parcel for the Solid Waste Disposal Complex including a sanitary landfill and other uses associated with the landfill operations. * * * In order to minimize potential environmental impacts to the greatest extent possible, stipulations in the special exception approval include requirements for submission of studies such as the completion of a background Water Quality Monitoring Plan and a resource based Land Management Program, prior to the development of the landfill or other associated operations. Data and Analysis.-- The RU-5 amendments relating to the use of a portion of the Walton Tract for the Central County Solid Waste Disposal Complex are supported by the best available data and by appropriate analysis of the data. The County utilized all the appropriate data available at the time of the adoption of RU-5. All analysis required to be performed on the data through the time of the final hearing was performed and taken into consideration. Both the data and the analysis of the data through the time of the final hearing support the selection of the Walton Tract site for the Central County Solid Waste Disposal Complex. The total functional population of Sarasota County is projected to increase from 337,471 in 1990 to 475,353 in 2010. Meanwhile, with the closure of numerous unlicensed dump sites in the early 1970s, the County began operating the Bee Ridge Landfill in 1972. Although two of the County's four municipalities formerly operated landfills, those facilities have been closed due to environmental problems. Bee Ridge currently is relied on to serve all the municipalities as well as the entire unincorporated area of Sarasota County. Bee Ridge receives an average of 1,400 tons of solid waste per day (511,000 tons a year). Even assuming a 50% reduction in solid waste disposal through recycling, the County is projected to require solid waste disposal facilities capable of land filling over 850,000 tons per year. A County study entitled Solid Waste Management and Resource Recovery Plan, completed in 1980, indicated that landfilling would likely remain an essential means of managing the County's solid waste stream for the foreseeable future and that it would be necessary to obtain a replacement facility for the Bee Ridge Landfill. The Bee Ridge Department of Environmental Regulation (DER) permit expires in 1995. Bee Ridge was not constructed with liners meeting current DER permit requirements. Although the County has installed an underground "slurry wall" at the perimeter to attempt to prevent contamination from leaching out, there is no assurance that DER will renew the permit. In any event, Bee Ridge is projected to reach its maximum height by the mid-1990s. In addition, the ability to expand Bee Ridge is not assured, due to strong opposition from neighboring property owners. In 1986, the opportunity arose to acquire the Walton Tract without the use of condemnation, and the County authorized a specific feasibility study performed on the 6,151 acre tract. The study examined the parcel in terms of Florida statutory landfill requirements, physical characteristics of the site, hydrogeology and soils, landfill block configurations, environmental considerations, and regulatory agency comments. Although the study indicated that only 3,600 acres would be required for a landfill, the entire tract was purchased on advice of professional staff to maximize siting flexibility and ensure sufficient areas for perimeter buffers, wetland mitigation, and wildlife conservation areas. The purchase price was $8.6 million, paid out of the proceeds of an $80 million Solid Waste System Revenue Bond Issue. Preliminary cost estimates were prepared for the initial 20 years of the life of a landfill on the site. The estimate came to $39 million. At the time the Revised and Updated Sarasota County Comprehensive Plan was being compiled in the years prior to its adoption in 1989, the County had not yet identified an exact landfill site on the Walton Tract. Accordingly, Apoxsee identified the entire Walton Tract was identified as the general area for the proposed Central County Solid Waste Disposal Complex. The Walton Tract was also designated entirely as "Public Resource Lands" since the County regarded the "Public Resource Lands" use designation to permit public facilities in careful conjunction with large conservation areas of important native habitat, e.g., a potable water wellfield and water treatment plant on the Carlton Reserve; a solid waste disposal complex on the Walton Tract; and RV parks, campsites and active recreation facilities at Oscar Scherer State Recreation Area and Myakka River State Park. In the spring and summer of 1991, after entry of the Hiss Final Order, the Board of County Commissioners held public hearings to determine whether the Walton Tract should once again be designated as the site for the Central County Solid Waste Disposal Complex to accommodate a Class I landfill, composting areas for yard waste and yard waste/sludge recycling, and a Class III landfill for construction debris, and, if so, to determine the specific location and extent of the Complex, in the context of a rezoning and special exception proceeding. During the course of the hearings the County Commission considered detailed presentations by the county professional staff, expert consultants and the public concerning the suitability of the Walton Tract site, as well as other sites, for a solid waste disposal complex. The Commission also considered, as part of the evidence, a Draft Alternative Siting Study prepared by the engineering firm Camp Dresser & McKee (CDM) to meet the regulatory requirements of the EPA and Corps of Engineers under Section 404 of the Clean Water Act and the requirements of the Recycle Now! Chapter Amendment. At the conclusion of the hearings, the County Commission, by Ordinance 90-54 rezoned 3,179 acres of the Walton Tract to Government Use (GU) and 2,972 acres to Open Use Conservation (OUC). The Commission, by Resolution 91-149 also designated a reduced 550 acre site (instead of a 1,187 acre site) for the Central County Solid Waste Disposal Complex subject to final action on Comprehensive Plan Amendment RU-5, which was adopted by Ordinance 91-41 on July 23, 1991, after another public hearing at which all the evidence from the rezoning and special exception hearings was received into the record. (a.) Economic Feasibility.-- The Walton Tract site is centrally located in the County, between what are planned to be the County's major population concentrations, and close to the Laurel Road interchange with I-75 which is committed to be constructed by FDOT in 1993 under an agreement with the County. This location provides efficient transportation access to the rest of the County. The trend in solid waste management is toward centralizing solid waste disposal facilities due to the cost of the facilities, including the cost of permitting; the ability to achieve economies of scale; the increased reliability inherent in operating a limited number of facilities; and the advantages of focusing budget-limited management and regulatory compliance resources. Transportation costs with a centralized facility are offset by the use of transfer stations which greatly compress the solid waste to reduce the number of trips from the transfer station to the central facility. Sarasota County is already successfully using this system. The Draft Alternative Siting Study identifies three other properties besides the Walton Tract as suitable. During the public hearings before the County Commission, however, two of the sites (D and E) were strongly opposed by citizens living around those potential sites and the third site (G) was closer to the Myakka River and could be in conflict with the Myakka River Wild and Scenic Management Plan. From the standpoint of economic feasibility, the County Commission was advised: The County has certain bond obligations due to the purchase of site F [the Walton Tract] to provide a solid waste disposal facility. The legal and future bond financing issues must be considered against the potential benefits of selecting another site. The County's bond counsel also advised the County Commission that, if the County elected not to locate the solid waste disposal complex on the Walton Tract, the County would have to pay back to the Solid Waste System Revenue Bond enterprise fund the fair market value of the Walton Tract from some other revenue source. (b.) Adjacent Property.-- In contrast to the other suitable sites, the property owners closest to the proposed site on the Walton Tract are not opposed to the solid waste disposal complex in light of the County's ability to provide 1,000 foot buffers and avoid access conflicts due to the size and location of the Walton Tract. Due to the 6,151 acre size of the Walton Tract, the solid waste disposal complex, as approved by the County Commission, including all borrow pits, is located more than 8,000 feet from the closest point on the Myakka River, a designated Wild and Scenic River, and the testimony indicates that heavy equipment would not be heard on the river. Due to the flexibility in siting the solid waste disposal complex, and the 100 foot height limitation placed on the landfill by the County Commission, the landfill will not be seen on Lower Myakka Lake or the Myakka River. Due to the location of the solid waste disposal complex on the Walton Tract, together with the hydrogeologic characteristics of the site, no adverse impact on the Carlton (Ringling MacArthur) Reserve potable water wellfield located several miles to the east across the Myakka River is to be anticipated. The restriction of the solid waste disposal complex and associated borrow pits to the northwest portion of the Walton Tract and the designation by the County Commission of the remainder of the property as Public Resource Lands results in approximately 3,000 acres of the Walton Tract, contiguous to Myakka River State Park and the Carlton Reserve to the east, being placed in a conservation land use designation, linking these natural areas into a contiguous system of 55,000 acres of high quality native habitat in protected public ownership. (c.) Character of the Walton Tract.-- Hundreds of hours over a period of approximately five years were spend on-site at the Walton Tract by experts in environmental, engineering and other scientific disciplines to collect and analyze data on soils; topography; natural resources, including habitats, flora, and fauna; and historic resources to determine whether, and where, a solid waste disposal complex should be sited on the tract that would be economically feasible and minimize environmental impacts. Every wetland and upland habitat on the Walton Tract as well as likely ecological corridors and preservation areas, including the Myakka River 100 year floodplain and mesic hammocks, have been identified and verified in the field. The methods that were used to identify habitats, including likely habitats of threatened and endangered species, met professionally accepted standards, particularly for planning purposes. Environmental constraints were identified at the beginning of the assessment of the Walton Tract and drove or determined the siting process. Over the course of a five year period, there were no sightings of threatened or endangered species that would render the designated site of the complex or the borrow pits unsuitable for the proposed use. The designated site was suitable from the standpoint of minimizing environmental impacts. The pine flatwoods and isolated wetlands within the solid waste disposal complex footprint are neither rare nor endangered, constituting 57% and 17% of the area of the County, respectively, and there are suitable formerly improved pasture areas on the site to mitigate these wetlands on a type-for- type, one-for-one ratio. There is also a large 300 acre area adjacent to Cow Pen Slough suitable for mitigation by rehydrating wetlands previously impacted by the channelization of Cow Pen Slough in the 1960's. The proposed location of the landfill on the site is the most appropriate from the context of habitat, wetlands and wildlife. The complex and borrow pits protect water resources by being located outside the watershed of the Myakka River and outside the 100 year floodplain of Cow Pen Slough. Also, the Class I landfill will be elevated approximately three feet above grade, and the entire solid waste disposal complex will be surrounded with a bermed stormwater management system at least five feet above grade that will not only treat the stormwater to required standards but also provide additional protection against flooding beyond a 100 year flood event. The reduced 550 acre size of the solid waste disposal site is reasonable for meeting the solid waste recycling and disposal needs of the County for a 20 year planning period. CDM used the best available data, including the Federal Emergency Managment Agency (FEMA) Flood Insurance Rate Maps (FIRM), in siting the complex out of the 100 year floodplain. (The U.S. Soil Conservation Service 1985 Flood Plain Management Study of the Cow Pen Slough is not reliable data with respect to the extent of the 100 year floodplain.) The site designated for the landfill on the Walton Tract has no geotechnical or water resource factors that would preclude it from being suitable for a landfill. There is no realistic danger of groundwater contamination of either the surficial or the deeper Floridan aquifer beneath the landfill in light of the required multiple liners and the required leachate collection and treatment systems. A modern landfill operation is not necessarily incompatible with surrounding wildlife. The landfill would be limited to an exposed working face of solid waste no more than 100 feet by 200 feet which must be covered daily. This reduces the landfill's attactiveness to seagulls and other scavengers. Many species of birds, including sandhill cranes, woodstorks, and bald eagles, continue to be seen within several hundred yards of the working face of the Bee Ridge landfill and its heavy equipment. Over the 12 year existence of the Bee Ridge landfill, there has been no quantifiable decline in such wildlife. The herd of deer adjacent to the landfill had increased substantially over that period. Internal Consistency.-- It was not the intent of RU-5's Public Facilities Objective 2.6 and Policy 2.6.1 that the specifically designated site for the solid waste disposal complex on the Walton Tract would be invalidated if any other possible site were found to have even marginally less environmental impact. Although there are other sites arguably with less environmental impacts, according to a rating system developed for evaluating the suitability of potential sites, other factors also went into the selection of the Walton Tract site. Both Public Facilities Objective 2.6 and Policy 2.6.1 contemplate the development of a solid waste disposal complex and site. They mean that the designated site should be developed in a manner which reduces environmmental impacts as much as possible. It certainly is at least fairly debatable that they contemplate the development of the Walton Tract site as a landfill. RU-5's amended "Principles for Evaluating Development Proposals in Native Habitats," Section VI.A.2.e., provides in part: In cases where a wetland is no longer capable of performing defined environmental functions and providing defined environmental values, or in cases where no other reasonable alternative exists other than disrupting a wetland, some alteration may be allowed. As amended by RU-5, this portion of the "Principles for Evaluating Development Proposals in Native Habitats" focuses on wetland mitigation requirements on other portions of a landowner's property, when a wetland must be altered to allow reasonable, beneficial use of the property. Section VI.A.2.e. of these principles does not require the County, or any other property owner, to demonstate, prior to developing their property, that there is "no reasonable alternative location in the County which impacts less wetlands or an equivalent acreage of wetlands of less environmental value." It certainly is at least fairly debatable that they do not. The Supportive Material for Apoxsee's Recreation and Open Space Element states: "Large portions of the Walton Tract cannot be used for landfill purposes because they are in the floodplain of either the Myakka River or the Cow Pen Slough." Nothing in RU-5 is inconsistent with this data and analysis. The acreage being used for the landfill and associated uses are not in the floodplain. Through RU-5, Recreation Policy 1.1.4 of Apoxsee provided: "Ecologically benign, non-consumptive, resource-based uses shall be implemented at the Walton Tract and the Ringling-MacArthur Reserve." On March 10, 1992, RU- 6 was adopted and amended Recreation Policy to provide: "Recreational uses implemented on the Walton Tract and the T. Mabry Carlton, Jr., Memorial Reserve [formerly known as the Ringling-MacArthur Reserve] shall be limited to activities which are ecologically benign, non-consumptive and resource based." It is at least fairly debatable that this policy does not refer to the portion of the Walton Tract designated for use as a landfill. Future Land Use Element (FLUE) Objective 1.1, as amended through RU-5, restricts land uses on Public Resources Lands by requiring the County: "To protect environmentally sensitive lands, conserve natural resources, protect floodplains, maintain water quality, and maintain open space." FLUE Objective 1.2 is: "To acquire and protect Public Resource Lands." The implementing policies under FLUE Objective 1.2 include: Policy 1.2.1 -- Sarasota County shall attempt to coordinate efforts to acquire public lands for conservation, preservation and open space. Policy 1.2.2 -- Provide adequate buffering of Public Resource Lands for potentially incompatible adjacent land uses. Policy 1.2.3 -- Permit normal management practices associated with native habitats. Again, it is at least fairly debatable that these objectives and policies do not preclude the designation of a part of the Walton Tract for use as a landfill. The Supportive Material for Apoxsee's FLUE states that the County will adopt "detailed management plans" for the Walton Tract (and the Ringling- MacArthur Reserve) and adds: In conjunction with the development of a portion of these two County-owned properties as a waste disposal complex and potable water supply, respectively, subtantial acreage is to be preserved to provide for wildlife corridors, wetlands protection, buffering zones, recreation, education, and open space uses. It is critical that any development within, and adjacent to, these Public Resource Lands be compatible with their inherent environmental values as well as the public values ascribed to them. The management plans . . . will address this issue. The County has not yet adopted a management plan for the Walton Tract landfill. But Public Facilities Policy 2.6.1 incorporates the detailed protective stipulations contained in Ordinance 90-54, which zoned the Walton Tract "Government Use" and "Open Use, Conservation," and in Resolution 91-149, which designated the site of the Central County Solid Waste Disposal Complex. These stipulations: require submission of a background water quality monitoring plan for review and approval by the County Natural Resources Department; require a preapplication meeting with the Stormwater Management, Natural Sciences, and Pollution Control Divisions prior to submission of a Master Stormwater Management Plan; limit post development runoff volumes to predevelopment volumes for storm events up to the mean annual (2.33-year) storm; require design and planting of littoral zones in all stormwater detention lakes in accordance with the County Land Development Regulations; require design and planting of littoral zones in all borrow lakes in accordance with the County's Earthmoving Ordinance; require submission of a final mitigation plan, including engineer drawings and plans for creating and maintaining adequate hydroperiods in created wetlands for review and approval by the Natural Sciences Division; require clear delineation and, during construction, marking of Preservation/Conservation areas; require appropriate sediment control devices around buffers of all wetlands within 500 feet of construction; prohibit disturbances in any Perservation/Conservation area except in approved construction areas or to provide approved access roads, fire lanes, utility transmission lines or nature trails; require notification to the Natural Sciences Division for determination of appropriate remedial action in the event listed species are observed; prohibits development of the solid waste disposal complex until a resource-based Land Management Program is prepared, approved and adopted; and limits the height of the landfill to 100 feet. In addition, Public Facilities Policy 2.6.1 prohibits development of the solid waste disposal complex until a resource-based Land Management Program is adopted consistent with the detailed requirements of the "Principles for Evaluating Development Proposals in Native Habitats" and the policies of the Environment Chapter of Apoxsee, e.g., Environment Policy 5.5.13, as well as Recreation Policy 1.1.4 and Future Land Use Policies 1.2.2 and 1.2.3. The Hiss Final Order does not require that a detailed management plan be adopted as part of RU-5 in order for RU-5 to amend the FLUM Series to designate a portion of the Walton Tract as the new County landfill. Rather, it was critical that the 1989 "plan fails to provide guidelines for a detailed management plan, and guidelines are especially critical for the coordination of a major landfill with sensitive natural resources in the area." (Emphasis added.) Recommended Order, Finding of Fact 378. It stated that "the plan should contain many of the provisions of the management plan promised for the Walton Tract." (Emphasis added.) Recommended Order, Finding of Fact 377. While not specifying the management plan guidelines believed to be necessary, the Hiss Final Order found that the plan was not "consistent with criteria of policies addressing the protection of natural reservations and the designation of environmentally sensitive lands [referring to F.A.C. Rule 9J-5.013(2)(b)7. and 9.]." (Emphasis added.) Recommended Order, Finding of Fact 376. Elsewhere, it found it "impossible to find that the plan contains policies addressing implementation activities for the protection of existing natural reservations." (Emphasis added.) Recommended Order, Finding of Fact 379. F.A.C. Rule 9J-5.013(2)(b)7. and 9. require objectives that "[protect] existing natural reservations identified in the recreation and open space element" and "[designate] environmentally sensitive lands for protection based on locally determined criteria which further the goals and objectives of the conservation element." The plan, as amended through RU-5, contains guidelines for a management plan for the Walton Tract that are sufficiently detailed to meet the requirements of F.A.C. Rule 9J-5.013(2)(b)7. and 9. RU-5 is not inconsistent with the Support Material referred to in Finding 49, above. The final version of the management plan is not data or analysis that must precede the amendment of the FLUM Series. RU-6 amended Environment Policy 5.5.3 to read: By July 1, 1992, the Sarasota County Board of County Commissioners shall have adopted criteria for conducting and staff shall have conducted an analysis to identify habitats of high ecological values and strategies to physically link natural areas into a contiguous system. The criteria for identifying these areas should consider several major factors including the presence of endangered species, outstanding water resources, high quality natural habitat, and value as a wildlife corridor. The Future Land Use Map Series shall be revised to show the location of these areas of high quality ecological value. This provision is not inconsistent with RU-5. The portion of the Walton Tract designated for development as a landfill is made up of pine flatwoods and isolated, seasonal wetlands which are neither rare nor endangered habitats. Except for a minor portion of the westernmost borrow pit, it is outside the 100-year floodplain. 5/ It is outside the watershed of the Myakka River. It is set back from habitats of threatened or endangered species, as well as surrounding property owners. It is reasonably sized to meet the solid waste recycling and disposal needs of the County for the 20-year planning period. Consistent with Environment Policy 5.5.3, the 2,971 acres of the Walton Tract which RU-5 leaves designated Public Resource Land includes those areas which are contiguous to Myakka River State Park and the Carlton Reserve to the east, linking natural areas into a contiguous system, and providing protection to the outstanding water resources and high quality habitat in the Myakka River watershed and in the Cow Pen Slough watershed in the southernmost portion of the Tract. Historic and Archaeological Preservation.-- In part, the Recommended Order adopted in the Hiss Final Order found: 362. To the exclusion of fair debate, the plan is not consistent with the criterion of the depiction on the ELUM of historic resources. The depicted archaeological sensitivity zones, which represent projections of possible sites, do not purport to represent the location of, for example, the 78 or 79 sites on the Florida Master Site Plan and other historical resources, which are concededly vulnerable to development. In part, the Recommended Order adopted in the Hiss Final Order concluded: As relevant to the determinations contained in this section, . . . Rule 9J- 5.006(1)(a)(11), . . . requires that the "following generalized land uses shall be shown on the existing land use map or map series: . . . Historic resources." Rule 9J-5.003(35) defines "historic resources" to mean: all areas, districts or sites containing properties listed on the Florida Master Site File, the National Register of Historic Places, or designated by the local government as historically, architecturally, or archaeologically significant. Based on the ultimate findings of fact contained in Paragraph 362, the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with the criterion of showing historic resources on the ELUM. For instance, there are 78 or 79 sites in the Florida Master Site File that are, by definition, historic resources, but are not shown on any ELUM. The Hiss Final Order required the following Remedial Action pertinent to historic and archeological preservation: 2. The County shall revise its existing land use map to show the location of historic resources, including the generalized location of sites listed in the Florida Master Site File or National Register of Historic Places or otherwise designated by the County as historically, architecturally or archaeologically significant. * * * 4. The County shall revise its Future Land Use Plan Map Series to include the historic resources mentioned in paragraph 2 above. RU-5 amends the Historic Preservation Chapter of Apoxsee to indicate that the map provided in Figure 3 in the Future Land Use Map (FLUM) Series shows the location of "National Register sites and other historically significant sites in Sarasota County." It also amends Figure 3 to identify 78 National Register sites from the Florida Master Site File. Appendix A to "Section 3: Sites in Unincorporated Sarasota County Listed in the Florida Master Site File" also is amended to list these sites. In essence, RU-5 follows from the updating of the supporting documentation to Apoxsee by adding to the Existing Land Use Map (ELUM) Series and the FLUM Series verified historically significant sites in Sarasota County, namely the sites found on the National Register and on the Florida Master Site File List. The County also has performed extensive study of portions of the County in an effort to locate significant historic and archaeological sites. The study has located many potential sites. However, the sites have not yet been fully evaluated to determine if they are historically, architecturally or archaeologically significant. Therefore, they have not yet been added, or proposed to be added, to the National Register or the Florida Master Site File List, and they do not appear in Apoxsee, as amended by RU-5. The County's determination not to identify and depict more sites on RU-5 is supported by the best available data and analysis. In addition, RU-5 adopted Future Land Use Element (FLUE) Policy 1.13.1 which provides for the coordination of land uses with the protection of historical resources. As part of the process for issuing development orders, the County has incorporated review by the County Historian to determine the likelihood of the site being historically significant, and the County places conditions on various development permits to protect historically significant sites. Except for the failure of Apoxsee, before RU-5, to depict the locations of, "for example, the 78 or 79 sites on the Florida Master Site Plan and other historical resources, which are concededly vulnerable to development," the Historic Preservation Chapter of Apoxsee already has been exhaustively scrutinized and found to be internally consistent and in compliance. See Hiss Final Order. Floodplain Delineation and Protection.-- In part, the Recommended Order adopted in the Hiss Final Order found: To the exclusion of fair debate, the FLUM is not consistent with criteria of the depiction of floodplains; Big Slough, whether it is classified as a river, floodplain, or wetland; and minerals and soils. . . .. The omission of floodplains is complete. Nothing in FLUM-2 corresponds to the floodprone areas shown in Figure 27 in the Supportive Material. For example, the Conservation/Preservation areas surrounding the Myakka River are not coextensive with the larger floodplain of the Myakka River depicted in Figure 27. The omission of floodplains is exacerbated by the absence of plan provisions providing effective protection for these critical natural drainage features, except for the Myakka River floodplain. * * * To the exclusion of fair debate, the plan is not consistent with criteria of objectives to ensure the protection of floodplains (other than that of the Myakka River), floodplain- associated soils, and wetlands (due to the inadequacy of the mitigation provision). Policy 5.5.8 of the Environment Element promises to adopt land development regulations to regulate develop- ment and specify necessary design standards for floodplains. In the absence of any undertaking in the plan to require that land uses in the floodplains be consistent with their function, Policy 5.5.8 does not resemble an objective ensuring the protection of floodplains. To the exclusion of fair debate, the plan is not consistent with criteria of objectives to coordinate the future land uses with topography, soil conditions, and availability of facilities and services, with respect to floodplains and the unrestricted use of septic tanks 6/ in the Urban area. The Supportive Material advises that future land uses in the floodplains must be less intensive than in the past. Except for the Myakka River floodplain, the plan fails to coordinate future land uses with the unique topography and soil conditions of the floodplains because the plan does not require that any development in the floodplains be consistent with their functions. In part, the Recommended Order adopted in the Hiss Final Order concluded: 83. Based on the ultimate findings of fact contained in Paragraphs 372 et seq., the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with criteria of the depiction on the FLUM of floodplains, Big Slough (regardless of its classification as a river, wetland, or floodplain), and minerals and soils. * * * 96. Based on the ultimate findings of fact contained in Paragraph 388, the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with criteria of objectives to ensure the protection of flood- plains other than that of the Myakka River, floodplain-associated soils, and wetlands due to the inadequacy of the mitigation provisions. 7/ The Hiss Final Order required the following Remedial Action pertinent to floodplain delineation and protection: The County shall amend "Figure 27: 100-year Floodprone Areas" to depict the location of all 100-year floodplains . . . and adopt Figure 27, as amended, as an addition to the Future Land Use Map Series. The county shall amend "Figure 5: General Soil Associations in Sarasota County" to indicate general locations of known sand and gravel deposits, and adopt Figure 5, as amended, as an addition to the Future Land Use Map Series. * * * 9. The County shall adopt a new policy in the Future Land Use Plan, to provide that no development order shall be issued which would permit development in floodplains or on floodplain- associated soils that would adversely affect the function of the floodplain, or that would degrade the water quality of water bodies associated with the floodplains in violation of any local, state or federal regulation, including water quality regulations. In part, RU-5 amends FLUE Objective 1.1 to state: "To protect environmentally sensitive lands, conserve natural resources, protect floodplains, maintain water quality, and maintain open space." RU-5 also adds the following policies: Policy 1.1.5: "All future development shall be consistent with the detailed master plans for each drainage basin as they are adopted through the Basin Master Planning Program." [Revision of Environment Policy 2.1.8.] Policy 1.1.6: "No development order shall be issued which would permit development in 100-year floodplains, as designated on Federal Emergency Management Agency [FEMA] Flood Insurance Rate Maps [FIRM] or adopted County flood studies, or on floodplain associated soils, defined as Soils of Coastal Islands, Soils of the Hammocks, Soils of Depressions and Sloughs, and Soils of the Floodplains and shown in figure 5, that would adversely affect the function of the floodplains or that would degrade the water quality of waterbodies associated with said floodplains in violation of any local, State, or federal regulation, including water quality regulations." Policy 1.1.8: "'Figure 27: 100 - Year Floodprone Areas' shall be adopted as Future Land Use Plan Map 5." Policy 1.3.2: "'Figure 5: General Soil Associations In Sarasota County' shall be adopted as Future Land Use Plan Map 4." RU-5 also adds Environment Policy 5.8.2: Floodplain functions shall be protected by application of the Land Development Regulations (Ordinance No. 81-12, as amended) and Goals, Objectives, and Policies of the Public Facilities and Future Land Use Plans. RU-5 adds Public Facilities Policy 3.2.8: New development in the 100-year floodplains shall be consistent with the Goals, Objectives and Policies of the Environment, Public Facilities, and Future Land Use Plans. By virtue of the RU-5 amendments, which use the best available data (the FEMA FIRM) and appropriate analysis, the Apoxsee now depicts the floodprone areas in the County and plans appropriately for their protection. It is at least fairly debatable that the plan provisions are internally consistent. Septic Tanks.-- In part, the Recommended Order adopted in the Hiss Final Order found: A similar lack of coordination exists with respect to the unrestricted use of septic tanks in Urban areas. The Supportive Material discloses "chronic" septic tank failures in areas south of the City of Sarasota, south of Venice, and in the Englewood area at the southern tip of the County on the coast. The last area is one of the few areas remaining near the coast with significant amounts of vacant, unplatted land. Each of the three areas is adjacent to estuarine waters. The Supportive Material cautions that, without centralized sewer in the Englewood area, the County's last remaining shellfish harvesting area, which is in Lemon Bay, is threatened. The Englewood area also includes wellfields that draw upon the surficial aquifer, which is highly susceptible to contamination in this region. Failing to coordinate future land uses with topography, soil conditions, and availability of facilities and services, the plan allows the unrestricted use of septic tanks in these critical Urban areas. Promises to study the problem, prioritize areas for centralized hookup, and in the meantime "discourage" the use of on-site sewage disposal systems offer little in the face of chronic failures of on-site sewage disposal systems and the absence from Table 80 of any expenditures for a centralized wastewater treatment system. Sarasota Exhibit 38, which is the 1986 Englewood Sector Plan, illustrates, in its discussion of septic tanks, the historic lack of coordination between future land uses and topography, soil conditions, and the availability of facilities and services. The Sector Plan notes that the soils of the majority of undeveloped lands in the Englewood area are poorly drained with less than two feet between the surface level and the groundwater table. A 1970 study by the County Health Department concluded: "Based on test results it would appear that Englewood has already reached the point where further development without adequate centralized sewerage facilities will lead to increased problems with regard to fecal pollution of ditches and waterways." [Fn. 30--The Sector Plan mentions various requirements imposed by the County that, if incorporated into the plan, would help coordinate future land uses with topography, soil conditions, and availability of facilities and services. County Ordinance 81-12 prohibits septic tanks within 100 feet of a 25-year floodplain unless the lot is at least five acres. The same ordinance reportedly requires that "the groundwater table be maintained at not less than forty-eight (48 inches) [apparently from the bottom of the drainfield]." Sector Plan, p. VI-4. Also, the County requires hookup to centralized wastewater systems for all new residential subdivisions within one-quarter mile of an existing sewer line, although this requirement can be waived. Id. at pp. VI-4 and VI-5. Finding insufficient septic-tank restrictions imposed by the Department of Health and Rehabilitative Services, the County has adopted several ordinances regulating on-site sewage disposal systems. Plan, p. 166. Ordinances 83-14, 83-83, and 86-03 detail these requirements, but Appendix D, 2 does not describe them in much detail. More important, the restrictions contained in all of these ordinances did not find their way into the operative provisions of the plan.] Sector Plan, p. VI-4. In the context of a plan that allows unrestricted use of septic tanks anywhere in the Urban area, coordination is not achieved by a plan provision requiring "reasonable assurance" that development proposals within the watersheds of existing public potable surface waters (i.e., the upper Myakka River, both Myakka Lakes, and Big Slough) will not "degrade the quality of such water." Nor is coordination achieved by a provision offering the general assurance of protection and conservation of surface water and groundwater resources, or another provision promising the adoption of land development regulations to specify "design standards" in environmentally significant/sensitive areas like watersheds and water recharge areas. No plan provisions guide the review of specific development proposals. The plan contains no performance or design standards or any requirements to guide the preparation of such standards. [Fn. omitted.] The vague provisions governing the use of septic tanks in the Urban area do not provide, in the plan, a meaningful basis upon which to coordinate, in the plan, future land uses with topography, soil conditions, and availability of facilities and services. In part, the Recommended Order adopted in the Hiss Final Order concluded: 97. Based on the ultimate findings of fact contained in Paragraphs 390 et seq., the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with the criterion of an objective to coordinate future land uses with topography, soil conditions, and the availability of facilities and services, with respect to floodplains and the unrestricted use of septic tanks in the Urban area. Besides the provisions already mentioned in connection with floodplain delineation and protection, the Hiss Final Order required the following Remedial Action pertinent to septic tanks: . . .. The Public Facilities Element, Future Land Use Element, and other appropriate elements must contain objectives, with principles, guidelines and standards, to coordinate future land uses with topography, soil conditions, and available facilites and services, with respect to both floodplain protection and the use of septic tanks. The County shall amend Policy 1.1.2 and add or amend other appropriate objectives and policies in the Public Facilities Plan, as follows 8/: * * * Policy 3.2.2 The County shall prohibit the installation of septic tanks in areas designated urban on the Future Land Use Plan Map Series, unless the installation and use shall not adversely affect the quality of groundwater or surface water or adversely affect the natural function of floodplains; further, the County shall adopt regulations which, to the maximum extent permitted by law, mandate hookup of existing as well as new development to a centralized wastewater treatment system. RU-5 amends Public Facilities Policy 3.2.2 to provide: The County shall prohibit the installation of septic tanks in areas designated Urban and Barrier Island on the Future Land Use Plan Map Series, unless the installation and use shall not adversely affect the quality of groundwater or surface water or adversely affect the natural function of floodplains as required by the provisions of the County Land Development Regulations (Ordinance No. 81-12, as amended); Ordinance No. 83-83, regulating design, construction, installation, utilization, operation, maintenance and repair of individual on-site sewage disposal systems, as amended; and any more stringent regulations applicable. Further, the County shall revise as necessary or adopt regulations which, to the maximum extent permitted by law, mandate hookup of existing as well as new development to a centralized wastewater treatment system, when available. The County has admitted, for purposes of effectuating a settlement, that Public Facilities Policy 3.1.2 is not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County. By the Stipulation, the County agrees to further amend Public Facilities Policy 3.2.2 by amending the last sentence to read: Further, the County shall require that all buildings served by on-site sewage disposal systems, except approved on-site greywater systems, connect to a publicly owned or investor-owned sewerage system within one year of notification by the County that such a system is available as defined in Chapter 10D-6.042(7), F.A.C. The County shall establish procedures for the notification of sewer availability. RU-5 also amends Public Facilities Policy 3.2.5 to make clear that the requirement for compliance with federal, state and local permit laws extends to individual on-site systems. It also provides: Soil surveys shall be required for septic tank permits. No individual on-site systems shall be permitted where soil conditions indicate that the system would not function without degrading water quality or where land alterations necessary to accommodate the system would interfere with drainage or floodplain functions. RU-5 also amends Public Facilities Policy 3.2.9 to provide: By 1994, the County shall begin implementation of its wastewater resource management program to be completed by 2020. The comprehensive plan, including the Captial Improvements Element, shall be amended by 1994 to reflect implementation of the program. Priority shall be given to providing centralized service to areas experiencing septic tank failure and areas where water quality has been adversely affected by current disposal methods. RU-5 added Environment Policy 5.8.3: Septic tanks shall not adversely affect water quality in accordance with Ordinance No. 83-83 and goals, objectives and policies of the Public Facilities and Future Land Use Plans. The vast majority of septic tanks in the County were installed prior to the adoption of increasingly stringent County regulations during the 1970s and 1980s. Since the early 1980s, there have been virtually no subdivisions approved for septic tanks in urban areas. With one seldom-used exception, all urban subdivisions (densities greater than one dwelling unit per acre) are required to have central sewerage facilities. (The exception, for subdivisions of half-acre lots where central water is provided, has proven not to be economically feasible for the developer in most cases.) Virtually all new subdivisions are being connected to large franchised systems. Consistent with Public Facilities Policies 3.2.2 and 3.2.5 and FLUE Policy 1.1.6, current regulations already provide that no septic tanks or drainfields are permitted within 100 feet of the 25-year portion of the 100-year floodplain. Under current County regulations, all lots are required to meet the County standards. When a septic tank system fails, the property owner is required to upgrade the system to the current county standards to the maximum extent physically possible on the property. Apoxsee's Capital Improvements Element provides for the expenditure of $3,403,000 for expansion of the County-owned centralized sewerage system. The County Health Department is currently developing a priority list for the extension of central sewerage systems into the older subdivisions in the County which are experienceing septic tank system failures due to the age of the systems. Funding for the extension of central sewerage into septic tank subdivisions is awaiting completion and approval of the priority list and an estimate of the costs. The timing of funding and implementation under RU-5 is reasonable and is supported by the best available data and appropriate analysis. Apoxsee specifically coordinates the density of urban development with central water and sewer service through FLUE Policies 1.7.2 and 1.7.3, as well as the application of the Urban Area Residential Checklist and the Urban Area Residential Density Matrix, which substantially reduces urban density when central water and sewer service are not provided. Potable Water Wellfields.-- In part, the Recommended Order adopted in the Hiss Final Order found: 242. The plan contains provisions conserving potable water and recharge areas. In the Public Facilities Element, for instance, Objective 3.1 is "[t]o establish a program of identifying and protecting existing and potential potable water supply sources." Policy 3.1.1 speaks of the adoption of a wellhead protection program by 1990, although this promise is nullified by the condition that the adoption of such a program is "subject to engineering studies and future deliberations and considerations." * * * Wellfields receive little direct protection in the plan. Objective 3.1 of the Public Facilities Element is "[t]o establish a program of identifying and protecting existing and potential potable water supply sources." As the language of this objective suggests, no such program exists, and the ensuing policies do little, if anything, in identifying implementation activities designed to achieve this objective. As already noted, Policy 3.1.1 states that the County will "ensure adequate protection for potable water supply systems," as well as recharge areas, "by initiating efforts to prepare and implement a wellhead protection program by 1990, subject to engineering studies and future deliberations and considerations." * * * Important protection of waterwells is derived from general provisions applicable to groundwater and potable water. Provisions governing groundwater have been discussed in connection with groundwater recharge. Provisions protecting potable water protect wellfields to the extent that groundwater provides potable water. For instance, Policy 5.3.2 of the Environment Element provides that the County shall implement water conservation measures. Measures to conserve water include the use of wastewater or stormwater runoff as a potable water source, as envisioned by Policies 2.1.4 and 2.1.5 of the Public Facilities Element. Likewise, Policy 1.2.6 promises that the County "will continue to explore ... water conservation strategies in cooperation with regional water supply authorities and other local entities." Water conservation measures will obviously protect wellfields by reducing demand and the possibility of overpumping. * * * 371. It is fairly debatable that the FLUM is consistent with criteria of the depiction of waterwells . . .. * * * It is fairly debatable that the plan is consistent with criteria of objectives and policies addressing the conservation of potable water, protection of natural groundwater recharge, and protection of waterwells. . . . . . .. With one exception, it is fairly debatable that the plan is consistent with criteria of policies addressing the protection of natural reservations and the designation of environmentally sensitive lands. To the exclusion of fair debate, the plan is not consistent with the latter two criteria as applied to the designation of the entire Walton Tract as Public Resource Lands, despite the intended use of part of the tract as a major landfill. * * * 385. It is fairly debatable that the plan is consistent with the criterion of an objective addressing the protection of water quality by the restriction of activities known to affect adversely the quality and quantity of identified water sources, including waterwells. The requisite protection is attained by policies protecting surface water and groundwater and conserving potable water, such as by investigating the use of treated wastewater effluent and stormwater runoff as potable water sources. * * * 387. It is fairly debatable that the plan is consistent with criteria of objectives to ensure the protection of waterwells . . .. In part, the Recommended Order adopted in the Hiss Final Order concluded: Based on the ultimate findings of fact contained in Paragraph 371, the plan is consistent with criteria of the depiction on the FLUM of waterwells . . .. There are no cones of influence that are required to be depicted on the FLUM because the Southwest Florida Water Management District has not identified any cones of influence in the County. According to Rule 9J-5.003(18), a "cone of influence" is "an area around one or more major waterwells the boundary of which is determined by the government agency having specific statutory authority to make such a determination based on groundwater travel or drawdown depth." * * * 91. Rule 9J-5.013(2)(c)1. requires that the plan contain "policies address[ing] implementation activities for the": 1. Protection of water quality by restriction of activities known to adversely affect the quality and quantity of identified water sources including existing cones of influence, water recharge areas, and waterwells[.] 92. Based on the ultimate findings of fact contained in Paragraphs 380 and 385-386, the plan is consistent with criteria of objectives addressing the conservation of potable water and protection of natural groundwater recharge areas and policies addressing implementation activities for the protection of water quality by restricting activities known to affect adversely sources of potable water. * * * 95. Based on the ultimate findings of fact contained in Paragraph 387, the plan is consistent with criteria of objectives to ensure the protection of waterwells . . .. The only pertinent thing RU-5 did with respect to potable waterwells was to amend Public Facilities Policy 3.1.1 to indicate that, whereas the 1989 plan stated that County was "initiating efforts to prepare and implement a wellhead protection program by 1990," by the time of RU-5, the plans were to "continu[e] efforts to immediately implement a wellhead protection program." The delay in implementation of the program was predicated on County staff's advice: The extension of the deadline . . . allows for the need to establish base line data and because of the extensive requirements for monitoring such a program. . . . In the face of this explanation, the intervenors did not prove that the extension of the deadline was not supported by the best available data and appropriate analysis. RU-5 also added Public Facilities Policy 3.1.2 Sarasota County will continue working in close cooperation with the Southwest Florida Water Management District and other professional regulatory agencies to develop and evaluate the feasibility of adopting a model wellhead protection ordinance for major public supply wells and well fields shown on the Future Land Use Map Series. This effort may include requests to the SWFWMD for cooperative funding or technical assistance to conduct an inventory and assessment of existing and potential public supply wells areas and conditions. and Public Facilities Policy 3.1.3 For existing and proposed public supply wells shown on the Future Land Use Map or Map Series, a zone of protection shall be delineated within which land use will be regulated to protect public water supply resources, consistent with the wellhead protection program. Where cones of influence have been delineated, the zone of protection shall be consistent therewith. Where cones of influence have not been determined, Sarasota County shall use its best available data to consider delineating interim protection zones of between 200 feet to 400 feet in radius, depending on variables including, but not limited to, soil characteristics and surrounding uses. When DCA found fault with the absence of an explicit time frame for implementation of the wellhead protection program in Public Facilities Policy 3.1.2, the County admitted, for purposes of effectuating a settlement, that Public Facilities Policy 3.1.2 was not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County. The settlement Stipulation amends the first sentence of Public Facilities Policies 3.1.2 as follows: Sarasota County will continue working in close cooperation with the Southwest Flroida Water Management District and other professional regulatory agencies to develop a model wellhead protection ordinance, culminating in Sarasota County adopting a wellhead protection ordinance during fiscal year 1992 for major public supply wells and well fields shown on the Future Land Use Map Series. The Department agrees that this amendment would bring RU-5 into compliance. The balance of the intervenors' criticism of the potable waterwell protection amendments in RU-5 are foreclosed by the Hiss Final Order, as recited above. Wetlands Mitigation.-- In part, the Recommended Order adopted in the Hiss Final Order found: 266. The mitigation requirement applicable to Marshes, Sloughs, or Wet Prairies addresses the habitat function of these wetlands. However, this requirement does not address the critical drainage function of those wetlands altered because "no other reasonable alternative exists." The drainage function is especially pertinent to Marshes and Sloughs, which are contiguous wetlands. Additional findings concerning the treatment of wetlands are at Paragraph 315 below. [Fn. 17 omitted.] * * * 315. Ignoring alterations to wetlands causing the loss of drainage functions, the mitigation requirement fails even to ensure the protection of the habitat function of wetlands, whose loss triggers the obligation to mitigate. The mitigation provision leaves to the developer the task of monitoring the success of the artificial wetlands created to replace converted wetlands. Assuming that developer monitoring may suffice with County supervision, the plan supplies no standards by which to evaluate a mitigation project or sanctions by which to enforce a mitigation agreement. These short- comings undermine the protection afforded Swamps, Marshes, and Wet Prairies. Testimony established that many wetland-mitigation projects fail, largely due to the absence of performance standards and failure to monitor. The Hiss Final Order contains no conclusions of law regarding wetlands mitigation. However, for reasons not readily apparent from the Final Order, the Remedial Action 13 does address wetland mitigation by requiring the County to "amend the Freshwater Wetlands section 'Principles for Development Proposals in Native Habitats.'" In most respects, RU-5 follows the specified remedial action. In those respects, the intervenors are foreclosed from challenging RU-5's amendment to the "Principles for Evaluating Development Proposals in Native Habitats." In some respects, there are difference between the specified remedial action and RU-5. The Remedial Action in the Hiss Final Order requires that the "Principles for Development Proposals in Native Habitats," Section VI.A.2.e., be amended to read: All alterations in wetlands which result in a loss of wetlands shall be mitigated on at least a two-to-one basis for wooded wetlands. Mitigated wetlands shall restore the type, nature and function of the altered wetland. A wetland mitigation, maintenance, and monitoring plan based on best available technology shall be submitted for review and approval by the County prior to or concurrent with the preliminary plan or site and development plan development review process. The success of mitgation shall be monitored by the applicant or his designees and shall also be subject to monitoring and enforcement by the County. Except as otherwise authorized herein, wetlands shall not be filled, drained, dredged, or converted to lakes or borrow pits. Instead, RU-5 amends the "Principles for Evaluating Development Proposals in Native Habitats," Section VI.A.2.e., to read: All alterations in wetlands which result in a loss of habitat, shall be mitigated in accordance with performance standards adopted by the Board of County Commissioners. These performance standards shall ensure that the recreated wetlands provide values and functions equal to or, particularly in the case of an impacted or degraded wetland, greater than those of the wetland qualifying for alteration. Reasonable assurance shall be provided such that the recreated wetland will exhibit the defined environmental function, nature, and, where hydrologically feasible, similar type of the altered wetland. Mitigation ratios shall be as follows: One-to-one for herbaceous wetlands and two-to-one for wooded wetlands, in accordance with Level I performance standards; or Two-to-one for herbaceous wetlands and four-to-one for wooded wetlands in accordance with Level II performance standards. General Requirements for Level I and Level II Performance Standards: For all projects, a wetland mitigation, maintenance, and monitoring plan based on best available technology shall be submitted for review and approval by the County prior to or concurrent with the preliminary plan or site and development plan development review process. All federally listed threatened and endangered plant species shall be preserved, protected or relocated pursuant to a transplantation program to be implemented prior to construction authorization. The success of mitgation shall be monitored by the Applicant or his designees and shall also be subject to monitoring and enforcement by the County. Except as otherwise authorized herein, wetlands shall not be filled, drained, dredged, or converted to lakes or borrow pits. Specific performance standards shall be contained in the County's Land Development Regulations (Ord. 81-12, as amended). Criteria for Level I Performance Standards: Level I standards shall include the following: the diversity of plants in the wetlands to be impacted shall be approximated in the recreated wetland; the habitat value of the recreated wetland shall approximate or exceed that of the wetland to be impacted; similar substrate shall be provided in the recreated wetland; success criteria (e.g., plant survival, animal diversity, hydroperiods) shall be established based on the best availabale technology, and shall be met before monitoring can be completed; and a hydroperiod maintenance plan, acceptable to the County, shall be prepared. Mitigation at ratios as described in (1), above, and based on success criteria for Level I performance standards may be provided prior to the alteration of any wetland qualifying for alteration. Mitigation with Level I performance standards may be provided in a defined area that is part of an environmental system or corridor that can enhance wildlife values and functions. Off-site wetland mitigation shall be allowed only where on-site mitigation or preservation is not feasible, as determined by the County. Criteria for Level II Performance Standards: Level II standards shall include the following: recreated wetlands shall be planted with at least three different native species at specific distances between plants; mulching may be used in lieu of planting; a hydroperiod maintenance plan, acceptable to the County, shall be prepared; and monitoring of success shall be required for at least three years. The County has admitted, for purposes of effectuating a settlement, that Section VI.A.2.e. of the "Principles for Evaluating Development Proposals in Native Habitats" is not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County. Under the settlement Stipulation, the County has agreed to revise Section VI.A.2.e. to specify that the "federally listed threatened and endangered plant species" to be preserved includes "those species that are listed or are C1 candidates for listing by the U.S. Fish and Wildlife Service; listed as threatened or endangered by the Florida Department of Agriculture and [C]onsumer [S]ervices pursuant to the Preservation of Native Flora Act, Section 581.185, Floirida Statutes; and listed by the Convention on International Trade in Endangered Species of Wild Fauna and Flora." There is no basis in the record for the intervenors contentions that RU-5, as amended by settlement Stipulation between the DCA and the County, is contrary to the required Remedial Action or inconsistent with the Growth Management Act. 9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administration Commission enter a final order that: (1) Sarasota County's RU-5 amendments to its comprehensive plan are not in compliance, but only for the reasons set out in the settlement Stipulation between the County and the DCA; (2) that the RU-5 amendments are otherwise in compliance; and (3) that the County be required to take the remedial action agreed to in the settlement Stipulation. RECOMMENDED this 31 day of August, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31 day of August, 1992.
The Issue Whether an amendment to the Broward County Comprehensive Plan, PC-92-20, which was adopted by ordinance number 92-50 rendered the Broward County Comprehensive Plan not "in compliance", within the meaning of Section 163.3184(1)(b), Florida Statutes?
Findings Of Fact The Parties. The Petitioner, the Florida Department of Community Affairs (hereinafter referred to as the "Department"), is a state agency. The Department is charged pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, Part II of Chapter 163, Florida Statutes (hereinafter referred to as the "Act"), with responsibility for, among other things, the review of comprehensive growth management plans and amendments thereto. The Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government charged with the responsibility pursuant to the Act for developing a comprehensive plan for future development in the unincorporated areas of the County and the approval of amendments to the County's comprehensive plan. The Intervenor, Susan Edn, is a resident of, and owns real property located in, Broward County, Florida. Ms. Edn submitted written and oral comments to the County concerning the plan amendment at issue in this proceeding. General Description of the County. The County is a generally rectangular-shaped area located on the southeastern coast of Florida. The County is bounded on the north by Palm Beach County, on the south by Dade County, on the east by the Atlantic Ocean and on the west by Collier and Hendry Counties. The County's Comprehensive Plan. The County adopted a comprehensive plan as required by the Act on March 1, 1989 (hereinafter referred to as the "County Plan"). Volume 1 of the County Plan includes the Broward County Land Use Plan, which applies to, and governs, future land use throughout the County, including the unincorporated areas of the County. The Future Land Use Element. The County Plan includes a Future Unincorporated Area Land Use Element dealing with future land use in the unincorporated areas of the County. See Volume 2 of the County Plan, Edn exhibit 15. The Future Land Use Element of the County Plan required by the Act consists of the Broward County Land Use Plan and the Future Unincorporated Area Land Use Element. The Future Land Use Element identifies a number of land-use categories, including a "residential" category. Densities of development on land designated "residential" are also established. There are eight designated residential future land uses identified and defined in the Future Land Use Element of the County Plan. Those designations and densities are as follows: Estate (1) Residential: up to 1 dwelling unit per gross acre. Low (2) Residential: up to 2 dwelling units per gross acre. Low (3) Residential: up to 3 dwelling units per gross acre. Low (5) Residential: up to 5 dwelling units per gross acre. Low-Medium (10) Residential: up to 10 dwelling units per gross acre. Medium (16) Residential: up to 16 dwelling units per gross acre. Medium-High (25) Residential: up to 25 dwelling units per gross acre. High (50) Residential: up to 50 dwelling units per gross acre. The density of development for the Rural Estate category is up to 1 dwelling unit per gross acre. The density for the Rural Ranch category is up to 1 dwelling unit per 2.5 gross acres or up to 1 dwelling unit per 2 net acres. The County Plan includes Goal 08.00.00, titled Public Facilities and Phased Growth, and Objective 08.01.00, which provide: GOAL 08.00.00 PHASE GROWTH CONSISTENT WITH THE PROVISION OF ADEQUATE REGIONAL AND COMMUNITY SERVICES AND FACILITIES. OBJECTIVE 08.01.00 COORDINATE FUTURE LAND USES WITH AVAILABLE REGIONAL AND COMMUNITY FACILITIES AND SERVICES Coordinate future land uses with the availability of regional and community facilities and services sufficient to meet the current and future needs of Broward County's population and economy without endangering its environmental resources. The following policies related to Goal 08.00.00 and Objective 08.01.00 are included in the County Plan: POLICY 08.01.04 In order to protect the health, safety, and welfare of Broward County's residents, development should not be permitted in those portions of Broward County with inadequate potable water and wastewater treatment facilities. . . . . POLICY 08.01.09 Private septic tanks and wells in Broward County should be phased out and replaced with centralized water and wastewater systems, where necessary, to protect the health, safety, and welfare of Broward County's residents. POLICY 08.01.10 Local government entities shall require existing development on septic tanks and private wells to hook up to centralized sewer and water facilities as they become available. The evidence failed to prove that the amendment which is the subject of this proceeding is inconsistent with the policies quoted in finding of fact 14 or any other goal, objective or policy of the County Plan. The Subject Amendment: PC-92-20. The Board of County Commissioners of the County adopted Ordinance 92- 50 on December 9, 1992. Ordinance 92-50 included nineteen amendments to the County Plan, including amendment PC-92-20. PC-92-20 (hereinafter referred to as the "Challenged Amendment"), is the amendment to the County Plan challenged in this proceeding by Ms. Edn. The Challenged Amendment amends the land use designation of approximately 2,453 acres of land. Of the 2,453 total acres, the designation of 2,272 acres is changed from Estate (1) Residential to Rural Ranch and the designation of the remaining 180.7 acres of land is changed to Rural Estate. Pursuant to the Challenged Amendment the change in designation also results in a change in density from one dwelling unit per acre to a density of one dwelling unit per two and one-half acres for the Rural Ranch and a density of one dwelling unit per two net acres for the Rural Estate. The Subject Property. The 2,453 acres of land which are the subject of the Challenged Amendment are located in the unincorporated area of the County, east of Southwest 148th Avenue, south of Griffin Road, west of Flamingo Road and north of Sheridan Street. Dwellings currently exist on approximately 85 percent to 90 percent of the subject property. Existing dwellings are served by septic tanks and wells. Pursuant to the County Plan, without the Challenged Amendment, the 10 percent to 15 percent of the subject property not yet developed may be developed at a higher density using septic tanks and individual wells. The subject property is not currently serviced by a sewer service provider or a water service provider. The County Plan recognizes and accepts the foregoing existing conditions. See Map 12-1 of the County Plan Map Series titled "Existing and Proposed Sanitary Sewer Service Area", and Map 14-1 of the County Plan Map Series, titled "Existing and Proposed Potable Water Service Area." The Challenged Amendment does not modify the existing conditions of the subject property except to decrease the density of development allowed on the property. The subject property is not located within a public wellfield zone of influence. See County Plan Land Use Plan Natural Resource Map Series, titled "Existing and Planned Waterwells & Zones of Influence." The Department's Review of the Challenged Amendment. The Department reviewed the Challenged Amendment as originated by the Act. After review of the Challenged Amendment, the Department raised no objections. As part of the Department's initial review of the Challenged Amendment pursuant to Section 163.3184(6), Florida Statutes (1992 Supp.), the Department considered comments of various entities, including the Florida Department of Environmental Protection, the South Florida Regional Planning Council, the South Florida Water Management District and others concerning the Challenged Amendment. Some of those comments were critical. The critical comments concerning the Challenged Amendment pertain to the use of wells for potable water and the use of septic tanks in the effected area. Those concerns were considered by the Department and ultimately determined to be insufficient to find the Challenged Amendment not "in compliance." The Department's conclusion was based, in part, upon the fact that the Challenged Amendment will reduce the demand on sewer by 477,400 gallons per day and the demand on water by 380,800 gallons per day. The Department's conclusion was also based upon the fact that the majority of the area effected has already been built-out. Ms. Edn offered the critical comments of various governmental entities who provided comments to the Department pursuant to Section 163.3184, Florida Statutes (1992 Supp.), into evidence. Evidently, Ms. Edn believes that those comments were not adequately considered by the Department or that they prove that the Challenged Amendment is not "in compliance." The evidence failed to prove either suggestion. The evidence failed to prove that the Department's consideration of critical comments about the Challenged Amendment was not adequate or that the Department's conclusions concerning those comments were not reasonable and proper. On the contrary, the evidence proved that the Department did consider all comments and decided that the Challenged Amendment was "in compliance" despite the critical comments. The evidence also proved that the Department's rationale for still finding the Challenged Amendment in compliance was reasonable. Additionally, Ms. Edn failed to present evidence to support a finding that the entities that made critical comments concerning the Challenged Amendment during the initial review of the Challenged Amendment still believe those comments are valid. Therefore, the evidence failed to prove that the critical comments concerning the Challenged Amendment were still valid as of the date of the final hearing of this matter. Data and Analysis-Sewer and Potable Water Services. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on sewer and potable water services. Facility and service capacity data and analyses concerning the impact of the Challenged Amendment on the availability of, and the demand for, sewer and potable water services was provided to the Department by the County. Based upon the data and analysis provided, the Challenged Amendment will tend to reduce the demand on sewer and potable water services. The evidence failed to prove that the data and analysis provided was inadequate. Data and Analysis-Soil Suitability. The evidence failed to prove that the County did not provide data and analysis concerning soil suitability. The County submitted data and analysis concerning the impact of the Challenged Amendment on soil and natural resources, including waterwells and zones of influence, to the Department. The County concluded that the Challenged Amendment would preserve the natural function of soils in the area and Ms. Edn failed to prove the inaccuracy of the County's conclusion. See the County Land Use Plan Natural Resource Map Services titled "Soils." Data and Analysis-Wellfield Protection. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on wellfield protection. The County relied upon the County Land Use Plan natural Resource Map Series titled "Existing and Planned Waterwells and Zones of Influence" and concluded that the area impacted by the Challenged Amendment is not located within a public wellfield zone of influence. The evidence failed to prove the inaccuracy of the County's conclusion. Data and Analysis-Biscayne Aquifer. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on the Biscayne Aquifer. The South Florida Water Management District has not designated the area of the County impacted by the Challenged Amendment to be a "prime groundwater recharge area" for the Biscayne Aquifer. Proliferation of Urban Sprawl. Pursuant to Section 163.3177(6)(a), Florida Statutes, (1992 Supp.) and Rule 9J-5.006(3)(b)7, Florida Administrative Code, comprehensive plans are required to discourage the proliferation of "urban sprawl". The Department has provided a definition of "urban sprawl" in a November 1989 Technical Memorandum: . . . scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density single- dimensional development. The evidence failed to prove that the foregoing definition or any other pronouncement in the Technical Memorandum constitutes policy of the Department. The evidence also failed to prove that the reduced densities allowed by the Challenged Amendment constitute "urban sprawl." The State Comprehensive Plan. The State Comprehensive Plan is contained in Chapter 187, Florida Statutes. Goals and Policies of the State Comprehensive Plan are contained in Section 187.201, Florida Statutes. The evidence failed to prove that the Challenged Amendment is inconsistent with any provision of the State Comprehensive Plan. The Regional Comprehensive Policy Plan. The South Florida Planning Council has adopted the Regional Plan for South Florida (hereinafter referred to as the "Regional Plan"). The Regional Plan was adopted pursuant to Chapter 186, Florida Statutes, to provide regional planning objectives for the County, Dade County and Monroe County. In the petition filed in this case, Ms. Edn alleged that the Challenged Amendment is inconsistent with Goal 13.4.10 of the Regional Plan. Goal 13.4.10 of the Regional Plan provides the following: Within the study area of the Southwest Broward/Northwest Dade Subregional Study, any existing or new user of on-site disposal systems in Broward County and within the Dade County urban development boundary should be required to hook up to a centralized wastewater collection when available. The evidence failed to prove that centralized wastewater collection is "available" to require existing or new users of on-site disposal systems in the area of the Challenged Amendment to hook up to. The evidence failed to prove that the Challenged Amendment is inconsistent with the Regional Plan.
Findings Of Fact On September 24, 1992, Respondent issued permit LE-367 to Petitioner, Marcia Carrol ("Carrol"), to construct various structures on real property in North Captiva, Florida. In April, 1993, Carrol transferred the property to Petitioner, Robert Goodfriend ("Goodfriend"). One of the structures covered by the permit is a flagpole. The permit requires the flagpole to be located landward of the dune system. During a preconstruction conference conducted on July 20, 1993, Mr. Michael Joity, Respondent's representative, approved the site of the flagpole indicated by the parties on a copy of the Master Site Plan (the "Master Plan"). The site indicated on the Master Plan complies with the permit. On April 7, 1995, Mr. Joity inspected the property. The actual site of the flagpole violates the permit. The flagpole is located seaward of the site approved in the permit and indicated on the Master Site Plan. The flagpole is located in the dune system and not landward of the dune system. The actual location of the flagpole violates the permit in another respect. It is encased in concrete. The permit does not authorize encasement of the flagpole in concrete. Concrete can increase erosional forces during storm events. Neither Mr. Joity nor Respondent represented that the flagpole could be located in its actual site or encased in concrete. Neither contravened the terms of the permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order: finding that the actual site of the flagpole and its encasement in concrete violates Respondent's permit; directing Petitioners to remove the flagpole; requiring Petitioners to restore any areas disturbed during the removal process; and ordering Petitioners to pay an administrative fine of $500. RECOMMENDED this 11th day of September 1996, in Tallahassee, Florida. DANIEL S. MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1996. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Robert Rogers, Esquire Cummings and Lockwood, P.A. 3001 Tamiami Trail North Naples, Florida 33941 Katherine Andrews Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether the amendment to the Putnam County Comprehensive Plan adopted pursuant to Ordinance 2007-27, as modified by Ordinance 2008-32, is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2008).1/
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plan amendments, and determining whether the amendments are “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Putnam County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Wal-Mart is a Delaware limited partnership authorized to do business in the State of Florida. Wal-Mart owns the 220- acre tract of land that is affected by the amendment (the Wal- Mart property). Wal-Mart submitted comments and recommendations to Putnam County concerning the amendment during the time beginning with the transmittal hearing and ending with the adoption of the amendment. Thomas Stevens owns property and resides in Putnam County approximately one mile to the east of the Wal-Mart property. Mr. Stevens submitted comments, recommendations, or objections to Putnam County during the period of time beginning with the transmittal hearing for the amendment and ending with the adoption of the amendment. Alma Mae Buckhalt owns property and resides in Putnam County east of the Wal-Mart property. Ms. Buckhalt submitted comments, recommendations, or objections to Putnam County during the period of time beginning with the transmittal hearing for the amendment and ending with the adoption of the amendment. Margaret Bennett Raulerson owns property in Putnam County. She resides in Volusia County on property that is contiguous to the Wal-Mart property. Ms. Raulerson submitted comments, recommendations, or objections to Putnam County during the period of time beginning with the transmittal hearing for the amendment and ending with the adoption of the amendment. Volusia County is a political subdivision of the State and is adjacent to Putnam County to the south. The Wal-Mart property is contiguous to Volusia County’s northern boundary. The Amendment The amendment adopted by Ordinance 2007-27 changes the future land use designation for the Wal-Mart property from “Agriculture I” to “Industrial,” and amends a policy in the Future Land Use Element of the comprehensive plan to create a planning district known as the South Putnam Distribution Warehouse Special Planning Area (SPDW Special Planning Area). The SPDW Special Planning Area applies exclusively to the Wal- Mart property. Ordinance 2007-27 amended Policy A.1.9.3.6 of the Future Land Use Element of the Putnam County Comprehensive Plan, which addresses industrial land uses, to add a new subsection “h”: In order to strengthen the planning process, the industrial property described below shall be subject to the special conditions and development standards set forth in the following provisions: The industrial property described below is hereby designated as the South Putnam Distribution Warehouse Special Planning Area (SPDW Special Planning Area”): [metes and bounds description of the Wal- Mart property] The SPDW Special Planning Area shall be subject to the following special conditions: The SPDW Special Planning Area shall be limited to a water treatment plant and ancillary facilities and distribution and warehouse uses, including ancillary uses of truck maintenance garage with truck wash; fuel islands; fire services facilities; and security gatehouses. Prior to any development activity, a delineation of the extent of wetlands and a survey to determine the presence or absence of protected species shall be completed. If the environmental assessment identifies the presence of any protected species, proper protection for the species shall be provided in accordance with the requirements of the U.S. Fish and Wildlife Service, the Florida Fish and Wildlife Conservation Commission, and the County. If the wetlands delineation identifies the presence of any jurisdictional wetlands, the requirements of the applicable environmental agency and the County shall be complied with. Potable water and sanitary sewer utilities to the SPDW Special Planning Area shall be provided by a centralized, community or regional level water and sewage system capable of serving all proposed uses within the SPDW Special Planning Area at the time of development. Access to the SPDW Special Planning Area shall be provided from US 17 by a paved road to be constructed south of the road known as Crawford Road (“Connector Road”). The following transportation improvements shall be completed prior to the issuance of a certificate of occupancy: a northbound to eastbound right- turn lane at the intersection of US 17 and the Connector Road; a southbound to eastbound left-turn lane at the intersection of US 17 and the Connector Road; and an exclusive westbound to southbound left-turn lane and an exclusive westbound to northbound right-turn lane at the intersection of US 17 and the Connector Road. If determined to be needed by the Florida Department of Transportation, a traffic signal at the intersection of US 17 and the Connector Road shall be installed. Any needed infrastructure improvements shall be funded through state economic development grants or by a private party. The SPDW Special Planning Area shall be subject to the following development standards: The maximum Floor Area Ratio for all development within the SPDW Special Planning Area shall be 0.125:1. The total impervious surface including all paved surfaces shall not exceed 40 percent. A minimum of 10 percent of the SPDW Special Planning Area shall remain as undisturbed open space. Buffer areas shall be considered open space for purposes of this development standard. The maximum building height of any building shall not exceed 112 feet from the exterior grade at the highest point of the roof structure. Buildings and loading areas shall be a minimum of 300 feet from the north boundary line, with the exception of a guard house to provide security along the northern internal access way, which shall be 150 feet from the north boundary. Building and loading areas shall be a minimum of 100 feet from the east and west boundary lines of the SPDW Special Planning Area. Parking lots shall be a minimum of 50 feet from the east and west boundary lines of the SPDW Special Planning Area. Buildings, loading areas and parking lots shall be a minimum of 300 feet from the south boundary line of the SPDW Special Planning Area. A buffer consisting of trees planted every 50 feet within 8 feet from the boundary line of the SPDW Special Planning Area shall be installed and maintained on the east and west boundary lines of the SPDW Special Planning Area, except within preserved wetland areas. A vegetative buffer shall be installed and maintained on the southern boundary line of the SPDW Special Planning Area, except within the preserved wetland areas. An 8 foot high masonry wall and a vegetative buffer at least 9 feet in width shall be installed and maintained along the north boundary line of the SPDW Special Planning Area adjacent to the Clifton Road right-of-way. In the event of a conflict between the special conditions and development standards established in Policy A.1.3.6.h. and any goal, objective, or policy in this comprehensive plan, the more strict provisions shall control. Ordinance 2007-27 also added a new Policy H.2.1.4 to the Capital Improvements Element of the Putnam County Comprehensive Plan: Potable water, fire protection water, and sanitary sewer service shall be provided to the South Putnam Distribution Warehouse Special Planning Area, established in Policy A.1.9.3.6 of the Future Land Use Element of the Putnam County Comprehensive Plan, by the City of Crescent City in accordance with the Utility Agreement between the City of Crescent City and Wal-Mart Stores East, LP dated April 11, 2006, and the Addendum to Agreement dated April 12, 2007. The Department issued its initial Notice of Intent to find Ordinance 2007-27 “not in compliance” because the Capital Improvement Element of the comprehensive plan did not address the traffic improvements required by the ordinance. Pursuant the settlement agreement between the Department, Putnam County, and Wal-Mart, the County adopted Ordinance 2008-32, which amended Table HH-2 of the Capital Improvements Element to include the transportation improvements in Putnam County’s FY 2011-2012 road projects. Petitioners did not express a specific objection to Ordinance 2008-32, but whether this remedial ordinance is “in compliance” is dependent on whether Ordinance 2007-27 is determined to be “in compliance.” Unless otherwise specifically noted, references to “the amendment” in the Findings of Fact and Conclusions of Law address the amendment adopted by Ordinance 2007-27, which created the SPDW Special Planning Area, modified the FLUM, and added a new policy regarding the provision of water and sewer services to the planning area. The Wal-Mart Property and Surrounding Land Uses The Wal-Mart property is located about 3.5 miles south of Crescent City, a small municipality in Putnam County. The property is located .7 miles east of U.S. 17, which is a two- lane undivided road in this area of Putnam County. The property lies on the south side of Clifton Road, a two-lane local road. The Wal-Mart property is currently in active agricultural use to grow potatoes. The area surrounding the Wal-Mart property is rural in character, dominated by agriculture and low density single- family residences. Most of the residences along Clifton Road are on the north side of the road, east of the Wal-Mart property. The residences are served by private wells and septic tanks. North of the Wal-Mart property, across Clifton Road, is land designated Rural Residential. It is currently being used as a plant nursery. The nursery is part of an approved planned unit development (PUD), referred to as the Skinner PUD, that authorizes 600 acres of nursery, 50,000 square feet of commercial, 270 residences, a 500-unit RV park, and a grass air strip. Only the plant nursery operation and grass airstrip exist today. The other PUD uses have not yet been undertaken. The plant nursery would remain where it is now located, across Clifton Road from the Wal-Mart property. East of the Wal-Mart property is land designated Agriculture I and is also being used to grow potatoes, but includes some wooded and wetland areas. South of the Wal-Mart property, is land designated Conservation and owned by the St. Johns River Water Management District. Also to the south, in Volusia County, is property owned by the Raulersons, with some agricultural uses and a residence. Farther south, in Volusia County, are lands designated for agricultural use. The Haw Creek Preserve State Park and the Haw Creek Conservation Area are also south of the Wal-Mart property. West of the Wal-Mart property are two parcels designated Agriculture I. One parcel is another potato farm. The other parcel is a semi-wooded area that has been used as a fern farm. Further west about a half-mile from the Wal-Mart property and abutting U.S. 17, is a tract of land designated Rural Center. The Rural Center designation allows agricultural, residential, neighborhood commercial, community commercial, and industrial uses. The industrial uses are restricted to no more than 25 percent of the total land area. Rural Area of Critical State Concern In 2003, Governor Jeb Bush designated Putnam County a Rural Area of Critical Economic Concern (RACEC). Governor Charlie Christ extended the RACEC designation in 2008 and it remains in effect. The purpose of a RACEC designation is to promote economic development in rural communities that are suffering from unusually depressed economic conditions, including high levels of unemployment, underemployment, and poverty compared to the State as a whole. In addition to the adverse effect these economic conditions have on individuals and families, the conditions adversely affect the ability of a local government to generate adequate revenues for education and other important government services. In 2006, 15.8 percent of the families in Putnam County were below the poverty level, compared to 9.0 percent for the State as a whole. In southern Putnam County, 41 percent of the population was below the poverty level in 2006. It is estimated that a distribution warehouse facility on the Wal-Mart property would create about 600 primary jobs and more than 100 secondary jobs. The increase in wages paid for these jobs would result in millions of dollars in increased purchases of local goods and services. The Office of Tourism, Trade, and Economic Development of the Governor’s Office has certified that this amendment meets the goals and objectives of the RACEC. The Wal-Mart property is also located in a Florida Enterprise Zone. The Florida Enterprise Zone is a designation that provides additional incentives for businesses to locate in economically distressed areas of the State. Data and Analysis Petitioners assert that the data and analysis associated with the amendment do not demonstrate a need for more industrial lands in Putnam County. In support of this assertion, Petitioners refer to the Evaluation and Appraisal Report (EAR) and the EAR-based amendments adopted by Putnam County in 2006, which made no provision for industrial uses on the Wal-Mart property. However, relevant data and analysis are not confined to the EAR or the documentation associated with the EAR-based amendments. They also include the data and analysis submitted in conjunction with the amendment application, all other data available at the time of the adoption of the amendment, and all subsequent analyses presented through the date of the final hearing. Volusia County points out that the data and analysis for the EAR-based amendments identifies actions to promote the development of distribution facilities in Putnam County, including identifying sites along four-lane corridors and “targeting highway 207 as a center for distribution and transportation facilities.” Volusia County contends that by targeting Highway 207 and other four-lane roads for distribution center sites, the “EAR-amended plan” indicates that distribution centers cannot go elsewhere. There was no evidence presented that Putnam County has abandoned its desire to locate distribution facilities along Highway 207 or other four-lane roads. However a statement of desire or preference is not the same as a prohibition against any alternative. Putnam County responded to a specific proposal by Wal-Mart and determined that the proposal meets the goals, objectives, and policies of the Comprehensive Plan when the plan is considered in its entirety. Industrial uses are treated differently than other land uses with regard to demonstrations of need. Section 163.3177(6)(a), Florida Statutes, provides: In addition, for rural communities, the amount of land designated for future planned industrial use shall be based upon surveys and studies that reflect the need for job creation, capital investment, and the necessity to strengthen and diversify the local economies, and shall not be limited solely by the projected population of the rural community. The undisputed evidence shows that there is a critical need for new jobs and capital investment in Putnam County. There is a critical need to strengthen and diversify the local economy. The utility agreement and other steps taken by Wal- Mart establish a reasonable expectation by Putnam County that the Wal-Mart property will be developed in a timeframe that can substantially reduce current unemployment, underemployment, and poverty levels in Putnam County. It is also likely to benefit Volusia County. The data and analyses, especially the data and analyses associated with the designation of the area as a Rural Area of Critical Economic Concern, demonstrate that there is a need for additional industrial land to accommodate the important economic opportunity that has been presented to Putnam County. Internal Consistency The Petitioners contend that the amendment is inconsistent with several goals, objectives, and policies of the Putnam County Comprehensive Plan. Each of these goals, objectives, and policies is identified and discussed below.3/ Future Land Use Element (FLUE) Objective A.1.1 states: In order to achieve maximum utilization of land by reducing sprawl and thereby providing the opportunity for improved use of resources (both man-made and natural), the County shall continue to coordinate future land uses with the appropriate topography, adjacent land uses, soil conditions and the availability of facilities and services through implementing the following policies: [policies omitted] The Individual Petitioners contend that the amendment violates Objective A.1.1 because the amendment does not reduce urban sprawl. However, because the objective expressly provides that it is to be achieved through the implementation of Policies A.1.1.1 through A.1.1.5, the amendment cannot be inconsistent with the objective unless it is inconsistent with one of its incorporated policies. Petitioners presented no evidence to show how the plan amendment is inconsistent with Policies A.1.1.1 through A.1.1.5. FLUE Policy A.1.4.2 states: The Land Development Code shall provide protection measures for the premature removes [sic] conversion of agricultural lands. The county shall analyze land use changes and development activities proposed adjacent to existing agricultural areas to ensure compatibility with agricultural uses. Land uses shall be administered in strict conformance with the Future Land Use Map and the specified density, intensity and land use allocation thresholds. Petitioners contend that the amendment will lead to the conversion of adjacent agricultural lands to non- agricultural uses. However, only the first sentence of Policy A.1.4.2 addresses the conversion of agricultural lands and it is directed to the Land Development Code.4/ Petitioners did not show that Putnam County failed to include protection measures in its Land Development Code as directed by Policy A.1.4.2. The second sentence of Policy A.1.4.2 addresses compatibility with adjacent agricultural uses. Florida Administrative Code Rule 9J-5.003(23) defines compatibility as follows: a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. Petitioners did not show that a distribution warehouse facility would interfere with adjacent agricultural uses. The possible future conversion of adjacent agricultural lands, which Petitioners concede would be at the request of the owners of the agricultural lands, is not a compatibility issue. Petitioners did not claim that the amendment was inconsistent with the last sentence of Policy A.1.4.2, which requires that land uses be consistent with the prescribed densities and intensities of the FLUM designations. FLUE Objective A.1.6 states: Putnam County shall discourage urban sprawl by immediately implementing the following policies. Further, regulations in the Land Development Code shall that [sic] implement the following policies: Individual Petitioners contend that the amendment violates Objective A.1.6 because the amendment does not discourage urban sprawl. However, they misconstrue Objective in the same manner as Objective A.1.1. Objective A.1.6 expressly provides that it is to be achieved through implementation of its incorporated policies. The amendment cannot be inconsistent with this objective unless it is inconsistent with one of the policies. FLUE Policy A.1.6.1 states: The County shall encourage infill and higher density and intensity development within the Urban Services designated areas of the County, where services and facilities are available to accommodate additional growth. Petitioners contend that the amendment is inconsistent with Policy A.1.6.1 because the amendment allows an industrial use outside of the urban services area of Putnam County. The parties disagree about the meaning of the words “shall encourage” that are used in Policy A.1.6.1 and in two other comprehensive plan provisions that are at issue in this case. Petitioners believe that “shall encourage” should be given a meaning indistinguishable from “shall always require.” Respondents do not explain what “shall encourage” means, but assert that it does not mean that the action to be encouraged must be effectuated with every plan amendment. Petitioners did not show that the amendment is part of a pattern of Putnam County to allow high density and high intensity development outside of the County’s urban services area. The Wal-Mart property is within Crescent City’s Chapter 180 Utility Service District. The Skinner PUD, just north of the Wal-Mart property, will be served by the City’s water and sewer utilities. The City and Wal-Mart have executed a utility agreement for the extension of water and sewer service to the Wal-Mart property. Crescent City’s water and sewer utilities have adequate capacity to serve a distribution center on the Wal-Mart property. Therefore, the purpose of Policy to encourage the location of high intensity land uses within areas where urban infrastructure is already available or planned is achieved or furthered. “Facility availability” is not defined in the Putnam County Comprehensive Plan, but it is defined in Florida Administrative Code Rule 9J-5.003(46) as satisfying the concurrency management system. The concurrency management system applies at the time of land development to assure that public infrastructure can accommodate the development. See Fla. Admin. Code R. 9J-5.0055. Using this definition, the fact that water and sewer lines have not yet been extended to the Wal-Mart property from Crescent City’s existing water and sewer utilities, does not make these utilities unavailable. FLUE Policy A.1.9.3.A.6.d states in relevant part: Industrial Uses shall be located on sites that utilize existing utilities or resources; utilize one or more transportation facilities such as air ports, water ports, collector roads, arterial roads, and railroads; do not require significant non-residential vehicular traffic to pass through established neighborhoods; and are sufficiently separated and/or buffered when necessary from residential and other urban uses to minimize adverse impacts of noise, glare, dust, smoke, odor or fumes. Individual Petitioners contend that the amendment is inconsistent with Policy A.1.9.3.A.6.d because the Wal-Mart property is not located on a site that utilizes existing utilities or resources. For the reasons already stated above, the amendment would further the policy of using existing utilities. Individual Petitioners contend that the amendment would cause significant non-residential vehicular traffic to pass through an established neighborhood. However, the traffic associated with the distribution warehouse facility would use a new connector road, which would keep traffic out of the Clifton Road neighborhood. The amendment also provides for buffering, which the evidence shows would minimize the adverse impacts of noise, glare, dust, smoke, odor and fumes. Intergovernmental Coordination Element (ICE) Goal G.1 states: Improve coordination between Putnam County and adjacent local governments and local, regional and state agencies in order to coordinate all development activities, preserve the quality of life, and maximize use of available resources. Petitioners contend that the amendment violates Goal G.1 because Putnam County failed to coordinate the amendment with Volusia County. This contention is based primarily on the fact that Volusia County objects to the amendment. Coordination is not synonymous with agreement. Goal G.1 cannot be reasonably interpreted as requiring that Putnam County’s coordination with other local governments must always result in their agreement with Putnam County’s ultimate action. Although Petitioners presented evidence to show that Putnam County’s coordination with Volusia County could have been better, there was coordination in the form of meetings, shared information, and responses to input. The evidence fell short of establishing that Putnam County did not coordinate with Volusia County with respect to this amendment, or that Putnam County has not improved its coordination efforts as directed by Goal G.1. ICE Objective G.1.2 states: Putnam County shall maintain coordinating relationships with adjacent local governments to ensure the compatibility of adjacent land uses, development proposed in the local comprehensive plan, and the preservation of wildlife and plant habitats. Petitioners contend that the amendment is inconsistent with Objective G.1.2 because the amendment causes incompatibility with adjacent uses in Volusia County. Petitioners point to the word “ensure” in the policy to argue that the coordination required by the objective must have an outcome with which adjacent local governments are in agreement. This interpretation of the objective is rejected for the reason previously stated. Petitioners did not show that coordinating relationships with Volusia County were not maintained. Petitioners did not show that the amendment creates incompatibility with adjacent land uses in Volusia County. Economic Development Element (EDE) Policy I.2.1.1 states: The County and its designated economic development representative shall continue to encourage expansion of existing business and industry and/or development of new business and industry in appropriate locations within designated areas, as feasible and applicable, in order to maximize the use of existing public services and infrastructure. Individual Petitioners contend that the amendment is inconsistent with Policy I.2.1.1 because the amendment allows an industrial use in a rural area on a site that does not utilize existing public services and infrastructure. As explained above with regard to FLUE Policy A.1.6.1, Putnam County’s use of the words “shall encourage” does not create an absolute prohibition against any contrary action. Petitioners did not present evidence that Putnam County has established a pattern of allowing industrial uses where there are no existing public services or infrastructure. Moreover, as described above, public services and infrastructure are available to the Wal-Mart property. EDE Policy I.2.1.5 states: The County, with its designated economic development representative, shall encourage clustering of major commercial and industrial activities in locations that: are in close proximity to principle [sic] arterials; have access to utilities (water, sewer, electricity, natural gas, telephone) or allow for provision of these utilities; have on-site rail facilities, when appropriate; have access to mass transit routes; minimize impacts to the natural environment and adjacent land uses; have access to barge port facilities, when appropriate. Individual Petitioners contend that the amendment violates Policy I.2.1.5 because the amendment allows an industrial use that is distant from other industrial uses and the affected roads cannot accommodate the traffic that would be generated. The wording “shall encourage” in Policy I.2.1.5 does not create an absolute prohibition against any new industrial use that is not clustered with existing industrial uses, or that would not meet all the other criteria listed in the policy. Petitioners did not show that Putnam County has a pattern of locating industrial uses in locations that do not meet these criteria. The roads in the area, particularly U.S. 17, were shown to have adequate capacity, as discussed later in this Recommended Order. Compatibility Petitioners contend that the distribution warehouse facility would be incompatible with surrounding rural uses. Their claim of incompatibility is based primarily on visual, noise, and traffic impacts. As stated above, Florida Administrative Code Rule 9J- 5.003(23) defines “compatibility” as avoiding “unduly” negative impacts. By using the adverb “unduly,” the definition indicates that the creation of some negative impacts does not necessarily make a use or condition incompatible. Although a large distribution warehouse facility would not contribute positively to the “rural character” of the area, such facilities are often located in rural areas. This is due, in part, to the amount of land needed and the difficulty in meeting LOS standards on roads in urbanized areas. The evidence does not establish that the residents in the area would encounter any noxious odors, unreasonable noise levels, or glaring lights associated with the distribution warehouse facility. The nearest residence is about 1,000 feet from the Wal-Mart property. Most of the residences in the area are located east and north of the Wal-Mart property. They are situated at the far end of long lots to take advantage of their views of Crescent Lake. Most of the lots are wooded. Only a few of the residents, when at home, would be able to see the distribution warehouse facility or hear any activities associated with the facility. The principal impact to the residents would be seeing the facility when they drive by it on Clifton Road and encountering its traffic when they drive on U.S. 17. Petitioners state that it must be assumed that Clifton Road would also be used for access to a distribution facility on the Wal-Mart property, because the amendment does not expressly state that the new collector road would be the “sole access” to the property. However, the requirement to construct the collector road, to make improvements at U.S. 17 to accommodate vehicle turns onto the collector road, and other evidence in the record, show that the amendment is intended to make the new collector road the sole access to the Wal-Mart property, except perhaps for emergency vehicles. Traffic on adjacent arterial roads is generally not a compatibility issue. Increases in the traffic volume on an arterial road will be due to land uses all along the road, near and far from each other. Traffic impacts are reviewed against adopted LOS standards. Compatibility with rural land uses does not mean that traffic volumes on U.S. 17 must be kept at “rural” levels. Finally, it must be noted that the land use changes that have been authorized for the adjacent Skinner PUD and the Rural Center will change the character of the area when their allowable uses are developed. These mixed uses will cause the area to be less rural in character. Compatibility is an objective criterion for the purpose of a compliance determination. The rural character of the area will be diminished if the existing potato field is replaced with a distribution warehouse facility. However, that impact, taking into account all relevant circumstances, would not be “unduly” negative. Urban Sprawl Florida Administrative Code Rule 9J-5.006(5)(g) identifies 13 “primary indicators” of urban sprawl to be considered in the review of a comprehensive plan amendment to determine whether the presence of multiple indicators “collectively reflect a failure to discourage urban sprawl.” The several primary indicators for which some evidence was presented by Petitioners are addressed below.5/ Indicator 1 is the designation for development of “substantial areas of the jurisdiction” as low-intensity, low density, or single-use development or uses in excess of demonstrated need.” Fla. Admin. Code R. 9J-5.006(5)(g)1. Respondents contend that the 220-acre Wal-Mart property does not constitute a substantial area of Putnam County. However, the wording of the rule does not make the indicator applicable exclusively to an amendment that would, by itself, designate a substantial area of land for low-density uses. The wording allows for a consideration of whether an amendment contributes to the local government’s total acreage of similar land uses in excess of demonstrated need. Neither the 220-acre Wal-Mart property nor the total acreage of industrial lands in Putnam County constitutes a substantial area of the jurisdiction designated for a single use. Petitioners contend that the amendment triggers Indicator 1 because the amendment designates additional acreage for industrial uses in excess of demonstrated need. Based on the findings previously made regarding need, especially the designation of Putnam County as a Rural Area of Critical Economic Concern, the amendment does not designate additional acreage for industrial uses in excess of demonstrated need. Indicator 2 is allowing or designating significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development. Fla. Admin. Code R. 9J-5.006(5)(g)2. The Wal-Mart property is located 3.5 miles from Crescent City and even farther from the urban areas of Putnam County. There are substantial areas of undeveloped land between the urbanized areas and the Wal-Mart property. However, the Skinner PUD creates a transition of land uses to the Wal-Mart property, which ameliorates to some degree the “leap frog” character of the re-designation of the Wal-Mart property to Industrial. Indicator 3 is allowing urban development in radial, strip, isolated or ribbon patterns. Fla. Admin. Code R. 9J- 5.006(5)(g)3. Petitioners contend that the amendment triggers Indicator 3 because the water and sewer utility lines for the Wal-Mart property would be extended from Crescent City to the property in a ribbon-like manner. The construction of water and sewer lines within rights-of-way, however, is excluded from the definition of “development.” See § 163.3164(6), Fla. Stat. Water and sewer lines do not constitute strip development. Indicator 4 is failing to protect natural resources as a result of premature or poorly planned conversion of rural land to other uses. Fla. Admin. Code R. 9J-5.006(5)(g)4. There are no significant natural resources on the Wal-Mart property and there was no showing that natural resources would be unprotected as a result of the amendment. Petitioners did not prove that the amendment constitutes premature or poor planning. Indicator 5 is failing to protect adjacent agricultural areas and activities. Fla. Admin. Code R. 9J- 5.006(5)(g)5. Petitioners contend that the amendment triggers Indicator 5 because the amendment will cause agricultural parcels adjacent to the new connector road to be converted to non-agricultural uses. As discussed above, the potential future conversion of adjacent agricultural lands at the request of the agricultural landowners is not a compatibility issue. Petitioners did not show that a distribution warehouse facility would interfere with adjacent agricultural uses. Indicators 6, 7, and 8 are related to the orderly and efficient provision of public services and facilities. Urban sprawl is generally indicated when new public facilities must be created to serve the proposed use. As discussed above, Crescent City’s utilities have sufficient capacity to serve the Wal-Mart property.6/ Wal-Mart would bear the cost of extending the water and sewer lines and constructing the collector road to U.S. 17. The amendment would maximize the use of Crescent City’s existing water and sewer utilities. Indicator 9 is failing to provide a clear separation between rural and urban uses. Although the amendment contains requirements for setbacks, buffers, and site design criteria, there would not be a clear separation between the industrial use on the Wal-Mart property and the adjacent rural uses. Indicator 12 is allowing poor accessibility among linked or related land uses. Petitioners are treating four-lane and larger roads as land uses for the purpose of their argument regarding Indicator 12. It is not clear that roads, which are clearly “links,” can also be land uses for the purpose of an analysis under Indicator 12. Petitioners did not identify any linked or related land uses among which the distribution warehouse facility would have poor accessibility. If the interstate highways, I-95, I-75, and I-10, qualify as land uses for the purpose of Indicator 12, access to these land uses is not convenient because they are not close. Putnam County’s inconvenient location in relationship to the interstate highways is probably a factor that is contributing to the County’s poor economy. Evaluating the amendment using the primary indicators of urban sprawl and the criteria in Florida Administrative Code Rule 9J-5.006(5)(h) through (j), it is found that Putnam County’s adoption of the amendment does not constitute a failure to discourage the proliferation of urban sprawl. Traffic Impacts The data and analyses related to traffic impacts were in great detail, resembling what is required for traffic concurrency at the time of land development. In addition, Volusia County presented much testimony and evidence on the evolution of the traffic analysis to support a claim that the analysis was arbitrarily changed to make the predicted traffic impacts smaller. The changes in the traffic analysis were due to requests for additional information by Volusia County and the Florida Department of Transportation (FDOT), and by the progressive refinement of the analysis by Wal-Mart’s traffic engineers to make its predictions more accurate. The more persuasive evidence established that Wal-Mart’s last (April 2007) traffic impact analysis is the most reliable in estimating the likely traffic impacts associated with the development of a distribution warehouse facility on the Wal-Mart property. U.S. 17 is a principal arterial and a part of the Strategic Intermodal System, which is comprised of highways that the FDOT considers important to the State of Florida because they carry the bulk of the State’s traffic.7/ Wal-Mart’s traffic engineer, Christopher Hatton of Kimley-Horne and Associates, Inc., used the Institute of Transportation Engineers’ Trip Generation Manual (ITE Manual) for his traffic analysis. There are two land use codes in the ITE Manual that are relevant, Land Use Codes 150 and 152. Land Use Code 150 pertains to warehousing for the storage of manufacturers’ goods and Land Use Code 152 pertains to the storage of manufactured goods prior to their distribution to retail outlets. The amendment at issue contemplates a type of land use that is more closely described by Land Use Code 152. FDOT expressed concerns about the use of Land Use Code 152, partly because the code was based on fewer traffic studies than Land Use Code 150, making Land Use Code 150 statistically more reliable. However, Land Use Code 150 is only statistically more reliable to predict the traffic associated with its particular kind of warehousing operation. Nevertheless, Mr. Hatton initially used Land Use Code 150 for his traffic analysis for the amendment and FDOT consistently expressed a preference for Land Use Code 150. The ITE Manual states that local trip generation data can be used to verify the appropriateness of a land use code when the land use code is based upon relatively few studies. Mr. Hatton collected local traffic data for existing distribution facilities like the one proposed for the Wal-Mart property to compare them with trip generations predicted by Land Use Codes 150 and 152. The local trip generation data from existing facilities compared closely with the predictions based on Land Use Code 152, but were substantially different (lower) than the predictions based on Land Use Code 150. The local data demonstrated that Land Use Code 152 was a better fit for the amendment. Mike McDaniel of the Department of Community Affairs told Mr. Hatton that the use of Land Use Code 152 was acceptable to the Department for the analysis of traffic impacts associated with the amendment. Mr. McDaniel testified at the hearing that Land Use Code 152 seemed to him to be more appropriate than Land Use Code 150. Volusia County claims that Mr. McDaniel acted improperly, citing Section 163.3177(10)(e), Florida Statutes, which states in relevant part: The Legislature intends that the department may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted. However, the department shall not evaluate whether one accepted methodology is better than another. No finding made in this Recommended Order regarding the traffic impacts associated with the amendment is based on Mr. McDaniel’s opinion, because he is not a traffic engineer. FDOT’s preference for Land Use Code 150 does not require a finding that Mr. Hatton’s methodology is not professionally acceptable. Mr. Hatton’s methodology, including his use of Land Use Code 152, is professionally acceptable. Volusia County contends that the amendment will cause some segments of U.S. 17 in Volusia County to fall below adopted LOS standards. Mr. Hatton came to a different conclusion in his April 2007 traffic study: the roadway segments of U.S. 17 within the study [area] are expected to operate within an acceptable level of service for existing and future horizon scenarios with the expected buildout of the South Putnam Distribution Warehouse Special Planning Area (of up to 1,200,000 square feet of warehouse distribution center land uses). Mr. Hatton analysis showed that the projected short- term (2011) and long-term (2015 and 2016) traffic volumes within the two segments of U.S. 17 within the study area (County Road 308B to the Volusia County line and Putnam County line to State Road 40) would not cause the segments to operate below the LOS Standard. Volusia County contends that Mr. Hatton did not disclose in the April 2007 analysis that the study area had been redefined to exclude the segment of U.S. 17 in Volusia County that was predicted to fail in the September 2006 traffic analysis. However, the study area was defined in consultation with Putnam County staff and with FDOT based on roadway segments on which projected traffic from the distribution warehouse facility would constitute five percent or greater of the LOS capacity of the segment. Volusia County notes that the amendment calls for certain improvements to be made on U.S. 17 to accommodate ingress to and egress from the new collector road, but DOT has not concurred in a “proportionate fair share analysis” for mitigating the traffic impacts associated with a distribution warehouse facility, and FDOT’s concurrence is required. See § 163.3180(16)(e), Fla. Stat. However, a proportionate share analysis, if necessary, does not have to be conducted until the Wal-Mart property is developed, as a part of concurrency management. The amendment would not put traffic on U.S. 17. Traffic is not generated by future land use designations, but by land development. Land development approvals require concurrency management, including a demonstration that road improvements will be made as necessary to maintain adopted LOS standards on affected roads. The amendment does not indicate that it is intended to establish a proportionate fair share analysis, nor does it state that the developer will not be required to make, or to share in the cost of making, other road improvements as required by a future concurrency determination. Petitioners did not prove that Putnam County made a decision that requires FDOT’s concurrence pursuant to Section 163.3180(16)(e), Florida Statutes. State Comprehensive Plan In their Proposed Recommended Order, Individual Petitioners contend that the amendment is inconsistent with Sections 187.201(15)(b)2., Florida Statutes, which sets forth the following policy of the State Comprehensive Plan, under the heading “Land Use:” Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. Petitioners did not prove that Putnam County has not developed a system of incentives and disincentives. Petitioners’ claim is that amendment creates an urban use that is not separated from rural uses. Based on the findings previously made regarding compatibility, urban sprawl, and the economic benefits of the proposed distribution warehouse facility, the amendment is consistent with the State Comprehensive Plan when the State Comprehensive Plan is construed as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order determining that the plan amendment adopted by Putnam County pursuant to Ordinance 2007-27, as modified by Ordinance 2008-32, is “in compliance.” DONE AND ENTERED this 22nd day of September, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2009.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the state land planning agency with the power and duty to exercise general supervision over the administration and enforcement of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules and regulations promulgated thereunder. See, Section 380.031(18), Florida Statutes. The City of Key West is in the Florida Keys Area of Critical State Concern. See, Section 380.0552(3), Florida Statutes and Rule 27F-8, Florida Administrative Code. Since the City is in the Florida Key's Area of Critical State Concern, City ordinances regulating land development do not take effect until DCA approves them "by rule." See, Section 380.0552(9), Florida Statutes. See also, Section 380.05(6), Florida Statutes (which provides that no proposed land development regulation in an Area of Critical State Concern shall become effective until DCA has adopted a rule approving such regulation.) In pertinent part, Section 380.0552, Florida Statutes provides: 380.0552 Florida Keys Area; protection and designation as area of critical state concern.-- PRINCIPLES FOR GUIDING DEVELOPMENT.--State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which chapter is hereby adopted and incorporated herein by reference. For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the principles for guiding development and any amendments to the principles, the principles shall be construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions. However, the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, are repealed 18 months from July 1, 1986. After repeal, the following shall be the principles with which any plan amendments must be consistent: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shorelines and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or man-made disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. * * * MODIFICATION TO PLANS AND REGULATIONS.--Any land development regulation or element of a local comprehensive plan in the Florida Keys Area may be enacted, amended, or rescinded by a local government, but the enactment, amendment or rescission shall become effective only upon the approval thereof by the state land planning agency. The state land planning agency shall review the proposed change to determine if it is in compliance with the principles for guiding development set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, and shall either approve or reject the requested changes within 60 days of receipt thereof. Further, the state land planning agency, after consulting with the appropriate local government, may, no more often than once a year, recommend to the Administration Commission the enactment, amendment, or rescission of a land development regulation or element of a local comprehensive plan. Within 45 days following the receipt of such recommendation by the state land planning agency, the commission shall reject the recommendation, or accept it with or without modification and adopt it, by rule, including any changes. Any such local development regulation or plan shall be in compliance with the principles for guiding development. (Emphasis supplied.) In sum, any land development regulations adopted by the City must be submitted to DCA for approval or rejection pursuant to Section 380.0552(9). Such regulations become effective when approved by DCA. In evaluating an Ordinance submitted pursuant to Section 380.0552(9), DCA will look to the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. DCA is directed to approve a proposed ordinance if it is in compliance with the Principles for Guiding Development; conversely, DCA is without authority to approve a proposed amendment which is not in compliance with the Principles for Guiding Development. On September 3, 1991, the City adopted Ordinance 91-25 (the "Ordinance") which provides for a 180 day moratorium on certain development activities in the City. The Ordinance prohibits ...the approval of Community Impact Assessment Statements and site plans for projects falling within the scope of the city's CIAS ordinance, where the proposed density or intensity of use is inconsistent with the permitted density or intensity under the future land use map of the city's pending comprehensive plan or the property is situated in an area designated as coastal high hazard or wetlands on the Future Land Use Map of the City's pending comprehensive land use plan... A building moratorium, such as that set forth in the Ordinance, constitutes a land development regulation as defined in Section 380.031(8), and Rule 28-20.19(4), Florida Administrative Code. Therefore, the moratorium could not take effect until approved by DCA by rule. A Community Impact Assessment Statement ("CIAS"), as defined in Section 34.04, Key West Code, describes expected impacts of proposed development on specified City resources and infrastructure. While a CIAS is not a development order, the City requires a CIAS as a precondition to the granting of a building permit for most large projects in the City. A developer is required to submit a CIAS for a proposed residential or hotel/motel development of ten or more habitable units or a proposed commercial development of 10,000 square feet or more. A CIAS is intended to ensure that the impacts a proposed project will have upon public facilities and the social and economic resources of the community are considered in the planning process and to avoid surprises during the planning process. The City will reject a CIAS that it finds to be incomplete or misleading. The City Commission held its first hearing on the Ordinance on June 18, 1991. At least five public hearings before the City Commission were held prior to the City's adoption of the Ordinance. The 1981 City of Key West Comprehensive Plan (the "Existing Comprehensive Plan") sets forth certain parameters and standards for the issuance of development orders. The Existing Comprehensive Plan has been approved by the Administration Commission in Chapter 28-37, Florida Administrative Code. The City of Key West land development regulations and certain amendments to the Existing Comprehensive Plan have been approved by DCA in Chapter 9J-22, Florida Administrative Code. The City is required by the States's growth management statute, Part II of Chapter 163, Florida Statutes, to submit to DCA a new comprehensive plan. Since the City is in an Area of Critical State Concern, the new comprehensive plan will not take effect until it is approved by DCA by rule. The Existing Comprehensive Plan remains in effect until a new plan is adopted. At the time the Ordinance was adopted, the City was in the process of preparing a new comprehensive plan to guide future development. By adopting the moratorium, the City sought to provide itself with an opportunity to effectively implement a new comprehensive plan. The City submitted a proposed new comprehensive plan (the "Pending Comprehensive Plan") to DCA on December 2, 1991. DCA and the City are currently involved in negotiations over whether the Pending Comprehensive Plan is in compliance with the state's growth management law, Chapter 163, Florida Statutes, and the rules promulgated thereunder, Rule 9J-5, Florida Administrative Code. The Pending Comprehensive Plan was still in the draft stages at the time the Ordinance was adopted. As indicated above, the City adopted the moratorium for projects requiring a CIAS in an effort to ensure that the City would be able to effectively implement a new comprehensive plan. The City is faced with numerous development-related problems which it attempts to address in the Pending Comprehensive Plan. These problems include: Water Quality Water Resources - The City draws all of its water from the Biscayne Aquifer. The water is pumped from wellfields on the mainland in Dade County and is transported through a single pipe to Monroe County to provide water to the Florida Keys population. While there is no immediate problem with the availability of water for the City, the Florida Keys Aqueduct Authority and the South Florida Water Management District (SFWMD) are in the process of preparing a water supply plan for Dade County and the Keys. These agencies recently informed all Monroe County local governments that they are approaching the limit of water that can be supplied from the aquifer and it is expected that there will be limitations on any further increases in consumption and/or consumptive use permits. The City and DCA contend that the moratorium will help the City to effectively analyze and address these issues in its new comprehensive plan. Chapter 4 of the Pending Comprehensive Plan would require the City to develop a plan for potable water resources, including replacement of the aging water main, providing for emergency supplies, and emphasizing the need to conserve water. Sewer System - Sewage treatment in the City of Key West is a serious problem. The treated effluent is currently dumped into the Atlantic Ocean and has been implicated in the degradation of the environmentally sensitive and unique coral reefs. Chapter 4 of the Pending Comprehensive Plan would direct the City to substantially improve its wastewater treatment level of service, prevent system infiltration, fix leaky pipes, and reduce the pollution of the surrounding waters. Stormwater Runoff - The waters surrounding the island of Key West have been designated Outstanding Florida Waters, pursuant to Chapter 403, Florida Statutes. The runoff generated by rains in the City is currently channeled into these waters either directly or via canals. The Existing Comprehensive Plan does not contain extensive guidance regarding stormwater runoff. Chapter 4 of the Pending Comprehensive Plan would direct the City to conduct a half million dollar study over the next two years to examine, develop, and implement a stormwater management plan. Section 4-2.1(d) of the Pending Comprehensive Plan would also require improved levels of service for stormwater runoff. Hurricane Evacuation - The evacuation of people out of the Florida Keys during a hurricane is an important element in the planning process for the City. The Existing Comprehensive Plan does not provide any standards for hurricane evacuation. Chapter 2 of the Pending Comprehensive Plan requires the City of Key West to develop a feasible hurricane evacuation plan and coordinate its implementation with the County. The City has taken no action on this directive to date. A model is being developed within the Monroe County Comprehensive Plan for the safe evacuation of residents from the Florida Keys. The model will include updated information based upon the Pending Comprehensive Plan. The inclusion of new development into the model is complicated. By temporarily limiting new development, the City can provide more certainty to this planning process. Wetlands and Environmental Protection - The Pending Comprehensive Plan seeks to strengthen and clarify the Existing Comprehensive Plan provisions regarding wetlands and habitat protection by reducing densities within wetlands, salt ponds, and coastal high hazard areas and requiring the adoption of amended land development regulations which extensively improve the City's environmental protection requirements. Residential Housing and Conversion to Transient Units - There have been a significant number of conversions from residential to transient units (hotels, motels, and other tourist accommodations) in the City during the last several years. The increase in "transient" persons exacerbates the strain upon public facilities, especially transportation facilities. The Existing Comprehensive Plan offers little protection to residential areas from commercial and transient intrusion. The Future Land Use Element of the Pending Comprehensive Plan attempts to guide and plan the locations of conversions. Transportation - Many roads in the City are currently operating at poor levels of service, including U.S. Highway 1, the main arterial roadway in the City. The City has never had a specific plan to improve the levels of service. The City is required under the growth management statute (Chapter 163) to provide adequate levels of service on the roads within the City. Chapter 2 of the Pending Comprehensive Plan proposes to implement an extensive traffic circulation system over the next twenty years which will include roadway improvements, revised levels of service, and nonmotorized transportation provisions. Solid Waste - Currently, the City's solid waste is disposed at a local landfill. The City's solid waste disposal facility is currently operating under a year old consent order that directs the facility to be closed within three years. The Existing Comprehensive Plan states that the City is to provide adequate public facilities, but does not explain what constitutes "adequate". The Existing Comprehensive Plan does not provide a plan for the impending closure. The Pending Comprehensive Plan would require the City to provide the funding for solid waste disposal improvements. The clear goal of the Ordinance was to delay the approval of certain CIAS applications, site plans and building permits for 180 days while work continued on the Pending Comprehensive Plan. The City contends that the moratorium will help it to effectively implement the policies which it anticipates will be incorporated in the new comprehensive plan when it is finally in place. The Ordinance provided that the 180 day moratorium would begin on the effective date of the administrative rule approving the Ordinance. The City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the Ordinance. Normal rulemaking pursuant to Section 120.54, Florida Statutes, generally takes between 90 to 120 days. Many local governments experience a significant increase in development proposals immediately prior to the adoption of a new comprehensive plan. Many of these proposals are prompted by a fear as to the impact of the new plan and seek to acquire vested rights under the old plan. The City and DCA were concerned that such an increase in development proposals might complicate the planning process by rendering some aspects or assumptions of a new plan moot before the plan could even be adopted. Moratoria are frequently used by local governments in order to complete an effective comprehensive plan without the need for changes. In the year immediately proceeding the adoption of the Pending Comprehensive Plan by the City Commission (from September 1990 through September 1991), the City received seven CIAS applications. No CIAS applications had been received during the year prior. The City contends that many of the 1990/1991 applications were motivated by an attempt to obtain vested development rights. However, no persuasive evidence to support this speculation was presented. The City Commmission did not consider any reports, studies or other data in connection with the enactment of the Ordinance. At the time the Ordinance was adopted, the City Commission did not make any specific determinations that there were any immediate dangers to the public health, safety or welfare of the community nor was the Ordinance enacted as an emergency ordinance. After its adoption by the City Commission, the Ordinance was transmitted to DCA on September 5, 1991 for approval pursuant to Section 380.0552(9), Florida Statutes. The only information transmitted to DCA was a copy of the Ordinance. As indicated above, the City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the City's Ordinance. The City Planner contacted DCA to request approval of the Ordinance by emergency rule. The City Planner and DCA concurred in the conclusion that the purpose of the Ordinance would be defeated if it was not immediately implemented. The City Commission did not specifically ask or authorize the City Planner to request DCA to enact the Ordinance by emergency rule. The City's concerns included, among other things, that the conversions of residential properties to transient tourist accommodations would accelerate during the process of finalizing the Pending Comprehensive Plan. In addition, the City expects that its new comprehensive plan will reexamine the densities in coastal high hazard areas. By adopting a moratorium, the City sought to insure that any new developments will comply with the new densities ultimately adopted. On September 18, 1991, DCA filed the rule packet for the Emergency Rule with the Secretary of State and the Emergency Rule became effective on that date. DCA did not prepare an economic impact statement for the Emergency Rule. The rule packet consisted of: (a) a Certification Of Emergency Rule; (b) the Notice Of Emergency Rule; (c) a Statement Of The Specific Facts And Reasons For Finding An Immediate Danger To The Public Health, Safety And Welfare, (the "Statement of Specific Reasons") and (d) a Statement of the Agency's Reasons for Concluding that the Procedure Used Is Fair under the Circumstances (the "Agency Conclusions"). The Notice of Emergency Rule appeared in the September 27, 1991 edition of the Florida Administrative Weekly. In the Statement of Specific Reasons, DCA concluded that: ...Generally, a [comprehensive] plan revision process stimulates an accelerated rate of permit requests. Accelerated permitting including the acquisition of vested rights during a planning period will severly erode the City's ability to effectively revise and implement the comprehensive plan. Such accelerated development will also lead to further deterioration of current hurricane evacuation clearance time for the City. This action will increase the existing potential for loss of life and injury to person [sic] and property, will cause further deterioration of level [sic] of service on existing roadways and will lead to irreversible environmental degradation. Therefore this rule must be adopted by emergency procedures because of the potential immediate danger to the public health, safety and welfare. In the Agency Conclusions, DCA concluded: The emergency rulemaking is fair because (1) it immediately approves the ordinance as adopted by the City of Key West Commission and (2) normal rulemaking would moot the intent of the adopted ordinance since the City of Key West would be required to continue accepting applications for building permits, site plans, of [CIAS's] covering work projects or both, as set forth in Section 2 of ordinance 91-25 until the Department's rule approving the ordinance becomes effective. DCA's Statement of Specific Reasons was not reviewed or discussed with the City or its planner prior to its preparation. In deciding to promulgate the Emergency Rule, DCA considered the major public facilities and natural resource problems confronting the City and the City's proposed strategy to deal with these problems in the Pending Comprehensive Plan. DCA concluded that an immediate danger to the public health, safety, and welfare currently exists within the City justifying the approval of the Ordinance by emergency rule. The evidence clearly indicates that the City is facing many significant problems from a planning perspective. Petitioner contends, however, that there is no evidence that any of those problems present an "immediate" threat to the public health, safety or welfare. For the reasons set forth in the Conclusions of Law below, this contention is rejected. On October 10, 1991, DCA filed a rule packet for the Proposed Rule with the Secretary of State. The rule packet consisted of the Notice Of Proposed Rule 9J-22.013, the Estimate of Economic Impact on All Affected Persons (the "EIS",) a Statement of the Facts and Circumstances Justifying Proposed Rule 9J-22.013 (the "Statement of Facts"), a summary of the Proposed Rule, a Comparison with Federal Standards, a Statement of Impact on Small Business and the text of the Proposed Rule. The Notice of Proposed Rule 9J-22.013 appeared in the October 18, 1991 edition of the Florida Administrative Weekly. On October 24, 1991, DCA filed a Notice of Change with the Secretary of State, stating that the correct number for the Proposed Rule was 9J-22.014, since 9J-22.013 had already been used. The Notice of Change appeared in the November 1, 1991 edition of the Florida Administrative Weekly. DCA did not consider any appraisals, data, reports or other studies concerning the economic impact that could result from the imposition of a moratorium. Instead, DCA followed the approach it had used in approving prior ordinances enacted by the City and concluded that its role in reviewing the Ordinance for compliance with the Priniciples Guiding Development did not require an examination of the economic impact of the underlying policy decisions reached by the City Commission in adopting the Ordinance. The EIS states that: Costs and benefits will occur as a result of this ordinance and were considered by the City prior to adoption of the ordinance. The City did not provide any information to DCA on the economic impacts of the Ordinance or on the impact of the Ordinance on the value of properties affected by it. The evidence was unclear as to the extent to which the City Commission considered economic impacts in deciding to adopt the Ordinance. Several public hearings were held in connection with the adoption of the Ordinance and DCA assumed that interested parties had an opportunity to express their concerns regarding the economic impact of the Ordinance at these hearings. DCA did not inquire as to the number of projects under review by the City at the time the Ordinance was passed nor did it seek a determination as to whether any projects with vested rights were affected by the Ordinance. The City Planning Department has retained a consultant, as required by the Ordinance, to conduct an economic study of existing conditions and projections for future growth. The purpose of this study is to assist in developing future amendments to the Ordinance. The study is not final and was not considered by the Key West City Commission when the Ordinance was enacted. DCA concluded that the proposed moratorium adopted by the Key West City Commission was consistent with the Principles for Guiding Development. Therefore, DCA concluded that Section 380.0552 required it to approve the Ordinance. Petitioner has not presented any persuasive evidence to establish that the Ordinance is in any way inconsistent with the Principles for Guiding Development. Petitioner owns 6.8 acres of vacant real property on Atlantic Boulevard in the City. He purchased the property in 1974 with the intent to develop it. Petitioner's property is located in an R-2H zoning district. The City's future land use map designates Petitioner's property as multi-family. Petitioner has spent approximately $71,000.00 to hire architects, engineers, surveyors, planners, biologists and attorneys to aid him in preparing to develop the subject property. In 1989, Petitioner submitted applications for a Department of Environmental Regulation Surface Water Management permit, and an Army Corps of Engineers dredge-and-fill permit, but neither of those permits have been issued to date. Generally the City requires a developer to obtain these "higher-order" permits prior to issuing a building permit. Petitioner has never applied for or installed sewer service, water service or any other utility service to the property. Since he acquired the property, Petitioner has not cleared any vegetation on the property except for minor trimming adjacent to the roadway which was required by the City for safety purposes. In June of 1989, the City passed a resolution notifying the Department of Environmental Regulation that it opposed Petitioner's application to place fill upon the property. On April 10, 1991, Petitioner submitted a CIAS to the City for a proposed 96 unit residential development in three buildings on the subject property. Before the Ordinance was enacted, the City Planner prepared a report dated July 3, 1991 reviewing Petitioner's CIAS as required by the CIAS ordinance. In that review, the City Planner concluded: The project is located in the R-2H zoning district and conforms to all provisions of that district, thus requiring no variances or special exceptions. On August 6, 1991, the Key West City Commission considered Petitioner's CIAS. The City Commission refused to approve the Petitioner's CIAS application. Specifically, the City Commission determined that Petitioner's CIAS application was incomplete and that the "submerged land district" designation ("SL") applied to the Petitioner's property as an overlay zoning district because Petitioner's property is located in an area which is deemed to include wetlands and mangroves. The City Commission requested that the CIAS address the "submerged land district" before the CIAS application could be deemed complete. The City Planner was not present at the August 6, 1991 City Commission meeting. The "submerged land district" in Section 35.07(f), City of Key West Code, provides that the density and site alteration of "environmentally sensitive areas including but not limited to wetland communities, mangroves, tropical hardwood hammocks and salt ponds shall be zoned with a maximum density of one (1) unit per acre. Site alteration shall be limited to a maximum of ten percent of the total size." The "submerged land district" overlay zone applies to any parts of the property which fall within the description of "environmentally sensitive areas" in Section 35.07, City of Key West Code. Because there is confusion over the interpretation and applicability of the SL district and because the SL land use district does not appear on the City's official zoning map, it was not considered in the preparation of the July 3 Report. The evidence in this case was inconclusive as to whether Petitioner's property is located in a SL district and/or whether Petitioner's CIAS for his property can be approved under the City regulations in place prior to the adoption of the Ordinance. On August 22, 1991, Petitioner submitted an amendment to the CIAS as well as a Site Plan. The amendment to the CIAS contests the City's conclusion that Petitioner's property should be considered part of a SL district. As set forth above, during this time period, the City had began consideration of the Ordinance. The first hearing on the Ordinance was held on June 18, 1991 and the Ordinance was passed by the City Commission on September 3, 1991. The City Planner notified Petitioner by letter dated October 11, 1991, that his CIAS Site Plan review and approval had been "stayed" because of the enactment of the Ordinance and because of the project's "inconsistencies with the City's Pending Comprehensive Plan." Petitioner requested an exception from the effect of the Ordinance pursuant to the procedure contained in the Ordinance. A hearing was held before the City Commission and the request was denied.
The Issue The issues to be considered here concern whether Comprehensive Plan Amendment #92-3, adopted by Ocala on June 23, 1992, by Ordinance No. 2254 is "in compliance" with requirements of law as that term is defined in Section 163.3184(1)(b), Florida Statutes. In particular the determination on compliance is limited to an analysis of Paddock Park's stated reasons for finding the plan amendment "not in compliance." In summary those allegations are as follows: The Future Land Use Map (FLUM) amendment is inconsistent with provisions of Section 163.3177(3)(a), Florida Statutes and Rule 9J-5.006, Florida Administrative Code, for the reasons specified in Sections I.A.1.(a)(b) and (d) of the DCA's May 1, 1992 objections, recommendations and comments (ORC). The FLUM amendment is inconsistent with the provisions of Section 163.3177(6)(b), Florida Statutes and Rule 9J-5.007, Florida Administrative Code for the reasons speci- fied in Section I.A.2.(a) of the ORC, and by reason of an erroneous assumption that 80 percent of the traffic generated on the 39.44 acre parcel which is at issue would impact State Road 200 rather than S.W. 42nd Street, resulting in a material miscalcula- tion of the impact on the latter roadway by the proposed reclassification contem- plated by the FLUM amendment. The FLUM amendment is inconsistent with both Potable Water and Sanitary Sewer sub- elements and is inconsistent with the provi- sions of the Capital Improvement Element of the Ocala Comprehensive Plan, in that the reclassification results in estimates of potable water and sanitary sewer usage in excess of that contemplated by Ocala's Water and Waste-water Master Plan for which no provision is made in the Capital Improvement Element of the Comprehensive Plan. The FLUM amendment is inconsistent with Objectives 1 and 2 and Policy 3.3 of the Inter-governmental Coordination Element of the Ocala Comprehensive Plan in that the FLUM amendment was made without notification or opportunity for input from Marion County as it influences the impact of the land use reclassification on the level of service on S.W. 42nd Street, a roadway alleged to be under the jurisdiction of Marion County or upon the land use classifications of property lying immediately east and west of the 39.44 acre parcel at issue and the entire area lying south of S.W. 42nd Street, which latter parcel lies within the jurisdiction of Marion County.
Findings Of Fact The Parties Paddock Park is a Florida corporation. It has its principal place of business in Ocala, Florida. It is the developer of Paddock Park, a Development of Regional Impact (DRI). Part of the DRI lies immediately north and east of the parcel of land which is the subject of the dispute. Paddock Park by submitting oral and written comments during the review and adoption proceedings associated with the subject Comprehensive Plan Amendment established itself as an affected person. DCA is the state land planning agency which has the responsibility for reviewing comprehensive plans and amendments to those plans in accordance with Chapter 163, Part II, Florida Statutes. Ocala is a local government in Florida. It is required to adopt a comprehensive plan consistent with Chapter 163, Part II, Florida Statutes, and the State and Regional Plans. Any amendments, such as the present amendment at issue, must also comply with Chapter 163, Part II, Florida Statutes, and the State and Local Plans. Ocala is located in the south central part of Marion County, Florida. It is the largest urban area in the county. It is comprised of approximately 18,820 acres of land area. In 1990 Ocala had an estimated population of 45,130 with a projected increase of population to 73,309 persons by the year 2015. Comprehensive Plan Amendment: Description, Preparation, Adoption and Review Ocala submitted its Comprehensive Plan to DCA on October 30, 1991. On December 14, 1991, DCA published a notice determining that the plan was "in compliance" with legal requirements. On January 24, 1992, Ocala submitted proposed Comprehensive Plan Amendment #92-1 to DCA for ORC review. The overall purpose of that amendment was to incorporate annexed property into Ocala's existing plan. One of those parcels is the subject of this dispute. The proposed Comprehensive Plan Amendment #92-1 included six FLUM changes. Each of those changes was addressed by separate ordinance. The FLUM change which is specifically at issue in this case was described as Comprehensive Plan Amendment #92-3. It is a parcel of approximately 59 acres in size. Within that parcel Ocala has classified 20.15 acres for retail services land use and 39.44 acres for professional services land use. The overall 59 acre parcel described in the proposal is located 200 feet south of State Road 200. That roadway is a principal arterial roadway. The 59 acre parcel extends southward to S.W. 42nd Street. The latter roadway is a collector roadway which is maintained and operated by Marion County in the immediate vicinity of this parcel. The collector roadway terminates at I-75, an interstate highway to the west and first intersects S.W. 27 Avenue a roadway within the Ocala corporate limits to the east. The ownership of the 59 acres is held by different property owners. The southern most parcel, "Tri-Star Parcel", is the 39.44 acres bordered by S.W. 42nd Street. At all relevant times that parcel has been undeveloped. The northernmost parcel, "Pearson Parcel", is 20.15 acres in size and it is partially developed with a now defunct mobile home park in the northern reaches of that property. The overall 59 acres is surrounded by other parcels within Ocala, excepting parcels basically to the south which are within unincorporated Marion County. Surrounding properties to the north of the 59 acres are designated for retail services that include a real estate office, a gas station and a bank. To the west, property is designated for retail services and includes the Hilton Hotel complex. To the east parcels are designated for professional services as well as retail services, to include a regional shopping mall, offices and a multi-family residential development of approximately 400 units. The Paddock Park property described before is located in this area and offers professional services land use. Preliminary to the submission of proposed Comprehensive Plan Amendment #92-3, the Ocala Planning Department had considered the designation of land uses for the 20.15 acres and 39.44 acres. The Ocala Planning and Zoning Commission as the local planning agency reviewed the proposed land use designation by the Ocala Planning Department. The land planning agency then made a recommendation to the Ocala City Council, the governing body, concerning the appropriate land use for the two parcels. The Ocala City Council made its initial determination on the designation of the 39.44 acre parcel at a transmittal hearing held on January 4, 1992. It was at that juncture that the designation of the 39.44 acres as professional services was initially addressed by the Ocala City Council. Ocala then submitted the proposed amendment for DCA review and comment. On May 1, 1992, DCA responded to the proposed Comprehensive Plan Amendment #92-3, together with the other proposed Comprehensive Plan Amendments under consideration by issuing an ORC report. On June 18, 1992, the Ocala City Council held a workshop to consider the ORC report directed to the proposed Comprehensive Plan Amendments. Ocala also filed a written response to the ORC report. On June 23, 1992, the Ocala City Council held a public hearing to consider adoption of Comprehensive Plan Amendment #92-3 together with other council business. Paddock Park was represented at that hearing by an attorney, counsel in the present action. At the public hearing counsel made known Paddock Park's opposition to designating the 39.44 acres, "Tri-Star Parcel", as professional services land use. In particular counsel questioned the assumption that 80 percent of the traffic generated by activities on the 39.44 acres would be routed to State Road 200, in that there was no existing access to State Road 200 from that parcel. Instead counsel stated his belief, in behalf of his client, that the access from the 39.44 acres parcel would be to S.W. 42nd Street. Counsel made mention that S.W. 42nd Street had a capacity as a collector roadway of about 12,500 trips for level of service "E". Counsel stated that he anticipated this parcel would generate 10,267 trips leaving only approximately 1,900 trips available on S.W. 42nd Street for any development which Paddock Park wished to undertake and for the development of Red Oak Farms and Ocala Stud Farm properties which lie to the south of S.W. 42nd Street. Counsel mentioned that the property south of S.W. 42nd Street carried a low density residential designation. Mention was made by counsel that a large amount of professional services land use contemplated for development of the 39.44 acres would effectively destroy Paddock Park's ability to develop by overloading S.W. 42nd Street. Counsel for Paddock Park requested the Ocala City Council to leave the land use designation for the 39.44 acres as agricultural or change it to some form of low density residential as opposed to professional services land use. Other discussions were held between counsel and the Ocala City Council concerning the implications of designating the 39.44 acres as professional services land use. A motion was made at the June 23, 1992 meeting to adopt City of Ocala Ordinance No. 2254 which dealt with the subject of the 20.15 acres and 39.44 acres which had been described in proposed Comprehensive Plan Amendment #92-3. That motion gained a second. A vote on the motion was delayed while further discussion was made concerning the 39.44 acres. In this interval an attempt was made by one councilman to amend the motion to adopt by changing the 39.44 acres from professional services to medium density residential. That attempt at amendment died for lack of a second. The Ocala City Council then voted to adopt City of Ocala Ordinance No. 2254. This constituted the adoption of amendments to the Ocala Comprehensive Plan which was received on August 7, 1992, reviewed by DCA and found to be "in compliance" by notice given by DCA on September 18, 1992. Included within that series of amendments was adopted Comprehensive Plan Amendment #92-3 dealing with the 39.44 acre parcel as professional services land use. In addition to the oral remarks by counsel made during the June 23, 1992 public hearing concerning adoption of the subject amendment to the Comprehensive Plan, counsel filed written objections on that same date. As basis for those objections counsel incorporated some objections to the proposed Comprehensive Plan Amendment #92-3 as stated in the ORC report, specifically the objection that Ocala had failed to demonstrate the need for an additional 40 acres of professional land services use to accommodate the projected population. Other reasons for objecting set forth in the correspondence included objection based upon the belief that a medium density residential designation of Paddock Park property to the east and low density residential use assigned by Marion County to the south were inconsistent with professional services designation of the 39.44 acres. Written comment was also made concerning the expected overtaxing of S.W. 42nd Street. Other than the data and analysis in support of the proposed Comprehensive Plan Amendment #92-3, the ORC report which addressed the data and analysis contemplated by the proposed Comprehensive Plan Amendment #92-3 and the oral and written remarks by counsel for Paddock Park, the Ocala City Council had no other basis for understanding the possible impacts of the traffic generated by activities on the 39.44 acres under professional services land use classification as they would pertain to S.W. 42nd Street and other roadways that would be impacted by that development. The change contemplated by the proposed Comprehensive Plan Amendment #92-3 and the adopted Comprehensive Plan Amendment related to those parcels was from a current zoning of B-2 (community business) related to the 20.15 acres to retail services and from A-1 (agricultural) for the 39.44 acres to professional services. The adopted Ocala Comprehensive Plan Amendment 92-3 changed the data and analysis from what was submitted with the proposed plan amendment concerning the anticipated impacts on roadways brought about by designating the 39.44 acre parcel as professional services land use. As stated, those differences were not known to the Ocala City Council when it adopted the subject Comprehensive Plan Amendment on June 23, 1992. Nonetheless, the data had been available prior to the June 23, 1992 adoption hearing or available sufficiently contemporaneous to that date to be proper data for determining the land use classification impacts on affected roadways. The data was professionally obtained and analyzed as submitted to DCA with the adopted Comprehensive Plan Amendment #92-3. Similar explanations pertain to the demands on potable water and sanitary sewer services for the parcels described in Comprehensive Plan Amendment #92-3. The procedures used by Ocala and the DCA in addressing the adopted Comprehensive Plan Amendment #92-3 on the subject of impacts to roadways and potable water and sanitary sewer services were not irregular when considering the underlying data and analysis that was prepared by Ocala, submitted to the DCA and approved by the DCA in finding the Comprehensive Plan Amendment #92-3 "in compliance". When DCA received the proposed Comprehensive Plan Amendment #92-3 it disseminated that information to Marion County to include the associated data and analysis accompanying that proposal. Marion County did not respond to the opportunity to comment on the proposed Comprehensive Plan Amendment #92-3 for the benefit of DCA in preparing the ORC report and in keeping with Marion County's statutory duty to consider Comprehensive Plan Amendment #92-3 in the context of the relationship and affect of that amendment on any Marion County comprehensive plan element. Marion County did not communicate the results of any review conducted concerning compatibility of the proposed Comprehensive Plan Amendment #92-3 with Marion County Comprehensive Plan Elements. No specific information concerning Comprehensive Plan Amendment #92-3 in its proposed form or in its adopted form was provided from Ocala to Marion County. Nor was any other contact made by Ocala with Marion County concerning Comprehensive Plan Amendment #92-3. The record does not reflect any attempt being made to discourage Marion County from offering comments concerning Comprehensive Plan Amendment #92-3. At the time that the Ocala City Council considered the plan amendment adoption on June 23, 1992, to designate the 39.44 acres as medium density residential would have promoted an over-allocation of that land use classification by 70 percent, whereas in classifying the property as professional services Ocala increased the percentage of professional services land use allocation from 93 percent to slightly in excess of 100 percent within the Ocala corporate limits. These facts together with the compatibility between a professional services land use designation and the uses for nearby parcels roughly north, east and west of the subject property supports classifying the 39.44 acres as professional services land use. In addition to the concern for proper allocation of land uses, Ocala recognized that the professional services land use classification would allow citizens other than those who resided in Ocala to be served. Notwithstanding the nature of some existing low density residential and agricultural land uses in the vicinity of the 39.44 acres designated by the amendment for professional services land use, especially property roughly to the south of that 39.44 acres across S.W. 42nd Street in Marion County, it was not inappropriate to designate the subject 39.44 acres as professional services land use. Paddock Park did not prove to the exclusion of fair debate that the designation of the parcel as professional services land use was a decision not in compliance with applicable statutes and rules. Allegation One The objections offered by DCA to proposed Comprehensive Plan Amendment #92-3 which are described in the first allegation to the petition by Paddock Park states: The above-cited proposed Future Land Use amendments are not based on data and analysis as cited below: Existing land use map depicting the existing generalized land uses of the subject properties, the generalized land uses of land adjacent to the amended boundaries of the City, and the boundaries to the subject pro- perties and their location in relation to the surrounding street and thoroughfare network is not included; The appropriate acreage in the general range of density and intensity of use for the existing land use of the subject pro- perties are not included; * * * (d) An analysis of the amount of land needed to accommodate the projected population, in- cluding the categories of land use and their densities and intensities of use, the esti- mated gross acreage needed by category and a description of the methodology used in order to justify the land uses assigned to the sub- ject properties. The basis on which land uses are assigned to the subject properties is not included in the documentation suppor- ting the amendment. To meet the criticisms offered by DCA in its ORC report, thereby avoiding any violation of Section 163.3177(3)(a), Florida Statutes and Rule 9J- 5.006(1)(2), Florida Administrative Code, DCA made these recommendations: Include an existing land use map depic- ting the existing generalized land uses of the subject properties, the generalized land uses of land adjacent to the amended bound- aries of the City, and the boundaries of the subject properties and their location in relation to the surrounding street or thoroughfare network. Expand the data and analysis supporting the proposed amendments to identify in tab- ular form the approximate acreage and the general range of density and intensity of existing land uses of the subject properties. In addition, the existing land use data tables in the Comprehensive Plan should be updated to reflect these annexed parcels. * * * (d) Include an analysis of the amount of land needed to accommodate the projected population, identifying the categories of land use and their densities and intensities of use, the estimated gross acreage needed by category and the methodology used in order to justify the land uses assigned to the sub- ject properties. The City should also take into consideration any existing over-alloca- tion of land uses. The over-allocation of land for any use should be reasonably related to the projected growth needs and allow for a certain amount of flexibility in the market place. When the adopted Comprehensive Plan Amendment #92-3 was submitted to DCA for compliance determination it included maps that depicted the existing land uses of the annexed areas, the existing land uses of parcels adjacent to the annexed areas and identification of surrounding street networks. The maps attached to the adopted Comprehensive Plan Amendment #92-3 generally address the requirements of Section 163.3177(3)(a), Florida Statutes and Rule 9J- 5.006(1)(a), Florida Administrative Code. This information together with preexisting knowledge by DCA satisfied its concerns in this area of criticism and led to the favorable response to Comprehensive Plan Amendment #92-3. In addition Ocala, in the adopted Comprehensive Plan Amendment #92-3, provided revised background information which served as data and analysis to support the adopted Comprehensive Plan Amendment #92-3. This information was to the following affect: BACKGROUND: The parcel designated for a Retail Service land use was once developed as a mobile home park. Though not part of the annexation, that parcel includes access to S.R. 200. Other considerations justifying the land use designations include: the lack of environmental constraints - the site is on previously developed land; the compatibility with surrounding properties, contributing to infill development along an established comm- ercial corridor which has been designated in the Comprehensive Plan as an activity center in which development should be promoted; the access to a major arterial roadway with excess capacity able to accommodate the land use; and the availability of adequate water and sewer. The rear parcel is appropriate for develop- ment in a Professional Services land use, which would be compatible with the surround- ing land uses. The amendment adds 20.15 acres to the comm- ercial acreage of the City, changing the over- allocation in the Retail Services sub-cate- gory from 133 percent to 135 percent (See Table 1). Adding additional acreage in the commercial land use category is justified in this instance since retail uses, particu- larly in this area, serve not only the exist- ing and future city residents but also non- incorporated county residents as well as residents of neighboring counties [objection 1.b.] The second parcel adds 39.44 acres to the Professional Services sub-category, changing the percentage from 93 percent to 101.5 percent for this sub-category of comm- ercial land uses (See Table 1). Adding add- itional acreage in the commercial land use category is justified due to the current under-allocation of Professional Services land use acreage, and due to the probability that the proposed that the proposed office uses will serve a larger population than just City residents. [objection 1.b] With the submission of the adopted Comprehensive Plan Amendment #92-3 Ocala included Table 1 that identified projected and existing allocations of acreage pertaining to need due to population increases and the anticipated impacts of this Comprehensive Plan Amendment on percentages of allocation of land use for the year 2002. Concerning Allegation One, Paddock Park has failed to show to the exclusion of fair debate that the adopted Comprehensive Plan Amendment #92-3 is not "in compliance" with applicable statutes and rules. Allegation Two In its objections to proposed Comprehensive Plan Amendment #92-3 DCA stated: The traffic circulation analysis for the above-cited proposed Future Land Use Map amendments are incomplete because of the following reasons: The analyses do not address all the road- ways that will be impacted by the development of the subject properties. In most cases, the analyses only address the roadways that provide direct access to these properties. DCA recommended: Revise the traffic circulation analyses from the above-cited FLUM amendments to address the following: All roadways that will be impacted by the development of the subject properties. In the statement concerning the data and analysis associated with the roadways set out in the adopted Comprehensive Plan Amendment #92-3 Ocala stated the following: ROADWAYS: Development of The annexed area has an impact on S.R. 200, a 6-lane state roadway classified as a principle arterial, on S.W. 27th Ave., a 4-lane minor arterial, on S.W. 42nd St., a 2-lane roadway classified as a local street. S.R. 200 was operating in 1990 at LOS D with 30,932 trips (using the most recent traffic counts available). Capa- city at adopted LOS D is 46,300 trips. Traffic counts are not available for 42nd St., but the total capacity for local street generally is 12, 100 trips per day. Capacity on S.W. 42nd St. may be less. The affected segment of S.R. 200 is expected to remain at LOS D by 1997, with 35,363 trips (Ocala Comp- rehensive Plan.) Splitting the area with a Retail Services land use in the north part and with a Profe- ssional Services and use replacing the exist- ing A-1 zoned area in the south, the 20.15 acres of commercial land use in the north parcel could generate 239,445 193,979 GLA square footage (based on 31 percent building coverage, the maximum possible due parking requirements) which could generate 12,19710, 693 trips on S.R. 200 (assuming 100 percent use and no passer-by or diverted trips). [Objection 2(b)] Subtracting 30 percent trips for passer by traffic which would be on the road in any case results in a predicted increase of 7,485 trips due to the commercial development and a total of 38,417 trips and LOS D. The addition of 12, 197 trips would not decrease the LOS of S.R. 200 below the adopted LOS of D on the frontage segment, and would not decrease the LOS be- low C on the other impacted segments. South- west 27th Ave. would not change from its existing LOS of A. [Objection 2(b)] In any case, the addition of this many additi- onal trips due to retain development is un- likely due to the large number of existing retail uses on S.R. 200. In other words, it is unlikely that any new retail develop- ment would attract a large number of people who don't currently use the roadway. Impact from development of the 39.44 acre south part in a Professional Services land is difficult to assess, due to a lack of data on mixed use developments (ITE Trip Generation, 5th Edition). Analyzing the 39.44 acre south parcel, and Using the trip estimates for an office park development in the ITE manual and splitting the traffic with 80 percent on S.R. 200 and 20 percent on S.W. 42nd St., an estimated additional 6,024 8,280 trips would result on S.R. 200 at full development. Due to the lack of traffic counts on S.W. 42nd St., the impact on the adopted LOS of E of an additional 6,024 trips is difficult to assess. However, a windshield survey indicates current traffic volumes on S.W. 42nd St. is far less than the 6,086 trips that would be necessary, with the addition of the estimated 6,024 from full development in a Professional Services land use, to degrade the adopted LOS, Adding 7,845 trips from the commercial development results in a possible 16125 added trips on S.R. 200 from full development on the annexed area in this land use, which would result in 47,057 total trips when added to the 1990 traffic count of 30,932 and degrade the aff- ected segment of S.R. 200 below LOS D (Total trips can not fall below 46,300. Trips on 42nd St. would increase by 1,987 total trips. Using the trip estimates for a business park development, rather than for an office park development as above, results in 5,924 trips from the proposed Professional Services land use area. Adding the 4,739 (80 percent of 5,924) trips to the 7,845 Retail Services land use esti- mated trips results in 12,584 estimated add- itional trips on S.R. 200, for a total of 43,516 which would keep the roadway segment at LOS D (46,300 maximum). To summarize, development on either parcel is not expected to degrade the LOS on the affected roadways below adopted levels of service. In any case, the concurrency system would not allow a development to be permitted which causes the roadway to degrade below the adopted LOS standard. Through the data and analysis submitted with the adopted Comprehensive Plan Amendment #92-3, Ocala has spoken to the impacts on collector and arterial roads and sufficiently concluded that the levels of service on those roads will not be lowered by the projected development impacts. Paddock Park's attempt to prove that other roadways such as S.W. 41st Street, S.W. 42nd Avenue, S.W. 33rd Avenue and S.W. 27th Avenue should have been included with the data and analysis and to prove more generally that the traffic impact data and analysis submitted by Ocala was insufficient did not demonstrate to the exclusion of fair debate that the supporting data and analysis submitted with the adopted Comprehensive Plan Amendment #92-3 was inadequate. Furthermore, development may not take place that compromises the level of service on roadways because of the protections afforded by the requirement for concurrent facilities to be provided. While Ocala determined that its original assumption concerning the traffic division for 80 percent to State Road 200 and 20 percent to S.W. 42nd Street projection for traffic generation was erroneous, this miscalculation did not preclude Ocala from further analysis concerning the impacts to roadways which has been previously described. Nor was Ocala prohibited from further considering the development pattern within the overall professional services land use classification expected to transpire within the 39.44 acre parcel, in particular as it pertains to automobile traffic generation. Finally, Ocala was entitled to correct any mathematical errors in calculations performed in the proposed Comprehensive Plan Amendment #92-3 when submitting the data and analysis concerning impacts to roadways which accompanied the adopted Comprehensive Plan Amendment #92-3 sent to DCA for review and compliance determination. As described, the data and analysis performed in submitting the adopted Comprehensive Plan Amendment #92-3 need not have been available to the Ocala City Council when it voted to approve to adopt the subject Comprehensive Plan Amendment on June 23, 1992. Given that the opportunity was presented to change the assessment concerning impacts to the roadways from the point in time in which the proposed Comprehensive Plan Amendment #92-3 was submitted until the place at which the adopted Comprehensive Plan Amendment #92-3 with associated data and analysis was transmitted for review and compliance determination, and upon the basis that the data and analysis performed to support the adopted Comprehensive Plan Amendment #92-3 has not been shown to be inadequate when considered to the exclusion of fair debate, Ocala's willingness to correct perceived errors in its assumptions associated with the data and analysis submitted with the proposed Comprehensive Plan Amendment #92-3 is condoned by this process and acceptable. Allegation Three As with the discussion concerning the roadways, it is the data and analysis performed to support the adopted Comprehensive Plan Amendment #92-3 which pertains. It states: POTABLE WATER: The area is served by City water. The area is within 1/4 mile of exist- ing water lines and would have to connect upon development. Development as above could generate 43 gpm (1,055 gallons per acres per day X 17.8 acres) with all non-resi- dential uses and 29.7 gpm with a mix of retail and residential uses of the property. New distribution pipes and treatment facil- ities would not be required. since S.R. 200 is already served by a 16" main and the in- creased water demand represents at most .0619 mgd, or 1.2 percent of the projected avail- able potable water capacity in 1997. [Objec- tion 3] Costs related to development using water plant capacity would be offset by the hook-up fees charges when new developments connect to water and sewer. SANITARY SEWER: The area is served by City sanitary sewer. The area is within 1/8th of a mile of existing service and would have to connect to the City sewer system upon deve- lopment Using the 51.7 percent ratio of water to wastewater flows contained in the Comprehensive Plan, flows of 22.2 gpm nd 15.3 gpm, average flow, and 88.8 gpm and 61.2 gpm peak flow, respectively, could be expected which represent .032 mgd or 1.2 per- cent of the projected available sewer plant capacity in 1997. [Objection 3] Through this data and analysis it has been established that there is adequate sewer and potable water capacity to service the development of the Tri- Star Parcel. Paddock Park has failed to prove to the exclusion of fair debate that the Potable Water and Sanitary Sewer Elements within the adopted Comprehensive Plan Amendment #92-3 are inconsistent with applicable statutes and rules and the Potable Water and Sanitary Sewer Elements and the Capital Improvement Element to the overall Ocala Comprehensive Plan, the controlling requirements when considering the amendment's acceptability. Allegation Four Within the Ocala Comprehensive Plan within the Inter-governmental Coordination Element, Objective one states: The City of Ocala shall maintain applicable level of service standards with the entity having operational or maintenance responsi- bility for the facility. The review and coordination of level of service standards will begin as of May, 1992, or at the adop- tion of the concerns of City management system, which ever occurs first, and will be a continuing process. Objective Two states: The City of Ocala shall coordinate its Compre- hensive Plan with that of the long-range objectives of Marion County and the Marion County School Board. The coordination mechan- ism between the City and the County shall con- sist of plan amendments and additional plan elements. Policy 3.3 in the Ocala Comprehensive Plan Inter-governmental Coordination Element states: The City of Ocala will continue to provide means of notification, review and input, in writing, regarding proposed development and zoning changes between itself and Marion County. It shall be the responsibility of City officials. In adopting Comprehensive Plan Amendment #92-3 Ocala has not interfered with the applicable levels of service standards pertaining to operational or maintenance responsibility for any facility over which Marion County or the City of Ocala have responsibility. By virtue of the provision of the proposed Comprehensive Plan Amendment #92-3 to Marion County through DCA, Ocala has met Objective Two and Policy 3.3 to the Inter-governmental Coordination Element within the Ocala Comprehensive Plan.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which finds the adopted Comprehensive Plan Amendment #92-3 to be "in compliance" and dismisses the petition by Paddock Park. DONE and ENTERED this 19th day of August, 1993, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6257GM The following discussion is given concerning the proposed findings of fact submitted by the parties: Paddock Park's Facts: Paragraphs 1 and 2 are not necessary to the resolution of the dispute. Paragraph 3 in its first two sentences are subordinate to facts found. The remaining sentences in that paragraph are not necessary to the resolution of the dispute. Paragraphs 4 and 5 are not necessary to the resolution of the dispute. Paragraphs 6 through 9 are subordinate to facts found. Paragraph 10 is contrary to facts found in its suggestion that the decision to classify the parcel in question as professional services was inappropriate or that the data and analysis addressing impacts to roadways made at the time the adopted Comprehensive Plan Amendment #92-3 was submitted was inadequate. Otherwise Paragraph 10 is subordinate to facts found. Paragraph 11 is subordinate to facts found. Paragraph 12 is subordinate to facts found with the exception of its suggestion that the adopted Comprehensive Plan Amendment #92-3 failed to adequately address land uses of properties adjacent to the 39.44 acre parcel, to include location of roadways. Paragraph 13 is subordinate to facts found with the exception of the third objective is not relevant to the inquiry in that it was not identified as an allegation in the petition as amended at hearing. Paragraph 14, while no specific attempt was made to coordinate and review the impact of the adopted Comprehen-sive Plan Amendment #92-3 as it impacted levels of service on S.W. 42nd Street and Southwest 27th Avenue through discussions with Marion County, Paddock Park did not show that the activities envisioned by adopted Comprehensive Plan Amendment #92-3 would inappropriately influence the operational and maintenance responsibility concerning those facilities. Paragraphs 15 and 16 constitute conclusions of law. Paragraph 17 is contrary to facts found to the extent that it asserts inadequate identification of land uses and roadways in the adopted Comprehensive Plan. Ocala's Facts: Paragraphs 1-3 are subordinate to facts found Paragraphs 4-6 constitute legal argument. Paragraphs 7-17 are subordinate to facts found. Paragraphs 18 through 20 constitute legal argument. Paragraph 21 is not necessary to the resolution of the dispute. Paragraphs 22 through 32 are subordinate to facts found. Paragraphs 33 through 37 are not necessary to the resolution of the dispute. Paragraphs 38 through 46 are subordinate to facts found. Paragraphs 47 and 48 are not necessary to the resolution of the dispute. Paragraphs 49 through 54 are subordinate to facts found. Paragraphs 55 through 59 are not necessary to the resolution of the dispute. Paragraphs 60 through 65 are subordinate to facts found. Paragraph 66 is not necessary to the resolution of the dispute. Paragraph 67 through 70 are subordinate to facts found. Paragraph 71 is rejected as contrary. Paragraph 71 is not factually correct. Paragraphs 72-74 are subordinate to facts found. Paragraphs 75 through 77 are not necessary to the resolution of the dispute. Paragraph 78 is subordinate to facts found. Paragraph 79 is not necessary to the resolution of the dispute. Paragraphs 80 through 82 is subordinate to facts found. Paragraph 83 is rejected to the extent that it suggests that it was necessary for Paddock Park to offer remarks about potable water and sanitary sewer at the June 23, 1992 public hearing. Paragraph 84 is not necessary to the resolution of the dispute. Paragraphs 85 through 88 are subordinate to facts found. Paragraphs 89 through 98 are not necessary to the resolution of the dispute. DCA's Facts: Paragraphs 1 through the first sentence in Paragraph 14 are subordinate to facts found. The second sentence in that paragraph is not necessary to the resolution of the dispute. The remaining sentences in Paragraph 14 are subordinate to facts found. Paragraphs 15 through 19 are subordinate to facts found. Paragraphs 20 and 21 are not necessary to the resolution of the dispute. Paragraphs 22 through 24 are subordinate to facts found. Paragraphs 25 through 27 are not necessary to the resolution of the dispute. Paragraphs 28 through 33 are subordinate to facts found. Paragraph 34 is not necessary to the resolution of the dispute. Paragraph 35 constitutes legal argument. Paragraphs 36 and 37 are subordinate to facts found. Paragraphs 38 through 40 are not necessary to the resolution of the dispute. Paragraphs 41 and 42 are subordinate to facts found. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 John P. McKeever, Esquire McKeever Pattillo and McKeever Post Office Box 1450 Ocala, Florida 34478 Patrick G. Gilligan, Esquire 7 East Silver Springs Boulevard Concord Square, Suite 405 Ocala, Florida 34474 Ann Melinda Parker, Esquire Bond Arnette and Phelan, P.A. Post Office Box 2405 Ocala, Florida 34478 Michael P. Donaldson, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue Have the Intervenors timely challenged the Hamilton County adoption of its comprehensive plan under the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes? If allowed to pursue their challenge, what is their burden of proof? Is it pursuant to Section 163.3184(9), Florida Statutes, (1991), the "fairly debatable" standard? Is it pursuant to Section 163.3184(10), Florida Statutes, (1991) the "preponderance" standard? Did Hamilton County (the County) fail to adopt its comprehensive plan within sixty (60) days from the receipt of written comments from the Department of Community Affairs (DCA) as required by Section 163.3184(7), Florida Statutes (1991)? If it did, was that failure jurisdictional thereby voiding the adoption process? Within the adopted plan, is Policy V.2.13 requiring special permits for hazardous and bio-medical waste treatment facilities and for their placement in areas designated agricultural and located with the rural area of Hamilton County, consistent with plan adoption requirements set forth in Chapter 163, Florida Statutes, (1991), Chapter 9J-5, Florida Administrative Code, the State Comprehensive Plan set forth in Chapter 187, Florida Statutes (1991) and the North Central Florida Regional Policy Plan? Within the adopted plan is Policy 1.15.1 prohibiting the disposal of medical, bio-hazardous, hazardous or solid waste by incineration or by other methods which produce air pollution, other than by facilities permitted, legally sited and operated as of July 23, 1991, consistent with plan adoption requirements set forth in Chapter 163, Florida Statutes (1991), Chapter 9J-5, Florida Administrative Code, the State Comprehensive Plan as set forth in Chapter 187, Florida Statutes, and the North Central Regional Policy Plan? More particularly must these policies meet and do they meet the requirements for surveys, studies and data set forth in Section 163.3177(6)(a),(8) and (10)(e), Florida Statutes (1991) and Rule 9J-5.005(2), Florida Administrative Code?
Findings Of Fact In December, 1990, Hamilton County prepared a proposed comprehensive plan. That proposal was submitted to the Department in accordance with Section 163.3184(3)(a), Florida Statutes. Within the Conservation Element of the proposed plan the County included Policy V.2.13, which stated: The County shall only allow hazardous and bio-medical waste treatment facilities as special permits within areas designated agricultural and located within the rural area of the County. Further, the County's land development regulations shall include conditions for such approval of a hazardous and bio-medical waste treatment facility as a special permit regarding the location, site design, buffer requirements, access to principal arterials and major intersections, requirements for appropriate public facilities, and require- ments which consider wind currents in relationship to population centers, which will direct any incinerated materials or noxious odors from these population centers. In no case shall a hazardous or bio-medical waste treatment facility be located within an Environmentally Sensitive Area as designated within this Comprehensive Plan. Policy V.2.13 was associated with Objective V.2 which states: The County shall include within the land development regulations, by 1992, provisions for the conservation, appropriate use and protection of the quality and quantity of current and projected water sources, water recharge areas and potable water wells. There was no specific data and analysis in the proposed plan directed to Policy V.2.13. Other policies associated with Objective V.2 addressed water issues. In the data and analysis which the County submitted to DCA with its proposed comprehensive plan the County did identify known pollution problems. This included a reference to point discharges for wastewater, non-point sources of water pollution, point air pollution sources and non-point sources of air pollution. None of the known activities were associated with hazardous and bio- medical waste treatment facilities. The data and analysis associated with the Conversation Element in the proposed plan also identified watersheds, wetlands, lakes, flood prone areas, and current water sources. The data and analysis further discussed the circumstances related to watersheds, wetlands, rivers, lakes, flood prone areas and air quality as the County perceived the existing conditions for those topics. Finally, the data and analysis spoke to the issue of projected water needs. No mention was made concerning how the aforementioned data and analysis would be considered in granting special permits for hazardous and bio-medical waste treatment facilities. On April 14, 1991, DCA transmitted its comments to the County concerning the proposed comprehensive plan and supporting data and analysis, together with its objections and recommendations for modifications to the proposed comprehensive plan. This activity was in accordance with Section 163.3184(6), Florida Statutes. The report that was transmitted is known as the "ORC" Report. The County received the ORC Report on April 22, 1991. The ORC Report made a number of objections to the objectives and policies set forth in the Conservation Element to the proposed comprehensive plan and recommendations for modifications to the same. The ORC Report specifically objected to Policy V.2.13 wherein the DCA stated: Policy V.2.13 does not describe the 'special permits' concerning hazardous and bio-medical waste treatment facilities within agricultural areas, does not define the extent of the buffers, and does not prohibit these facilities in conser- vation areas. The general recommendation to improve Policy V.2.13, among policies found within the Conservation Element, was to this effect: Provide data and analysis to support the above- referenced policies. Revise the policies to identify the specific implementation programs or activities that will be undertaken by the County to achieve the goal and objectives with which the policies are associated. Eliminate or define all conditional and vague language. Revise the Future Land Use Map to support the revised policies. The County then held two public hearings related to the adoption of a comprehensive plan. See Section 163.3184(15), Florida Statutes (1991). The first public hearing was held on June 18, 1991. At that time no decision was reached to adopt a comprehensive plan. The public hearing was adjourned. On July 23, 1991, the County reconvened the public hearing related to the comprehensive plan adoption. Following the second public hearing associated with the plan adoption, the County in the person of its Board of County Commissioners who had conducted the public hearings, adopted a comprehensive plan for Hamilton County. The adopted comprehensive plan was transmitted to DCA on July 30, 1991. The transmittal letter supporting the adopted comprehensive plan noted that the comprehensive plan was adopted on July 23, 1991. The transmittal letter pointed out the changes to the adopted comprehensive plan which were not reviewed by DCA when DCA considered the proposed comprehensive plan. As with the proposed comprehensive plan, the County submitted data and analysis with the adopted comprehensive plan pointing out the data and analysis accompanying the adopted comprehensive plan which had not been reviewed by the DCA when it considered data and analysis supporting the proposed comprehensive plan. Within the conservation element to the adopted comprehensive plan Objective V.2 remained as set forth in the proposed comprehensive plan. Certain policies associated with Objective V.2 had changed. However, Objective V.2. and its associated policies set forth in the adopted comprehensive plan continued to address water issues. In particular, Policy V.2.13 did not change with the plan adoption. Additional data and analysis submitted by the County supporting the Conservation Element to the adopted comprehensive plan deleted the Suwannee River State Park as a conservation area. Specific references were made to Jumping Gully Creek, Swift Creek, Hunter Creek and the Withlacoochee River and activities associated with those water bodies. However, as with the proposed plan it was not explained how the County intended to use the original and additional data and analysis in deciding special permit issues for hazardous and bio-medical waste treatment facilities. When the County adopted its comprehensive plan it added an objective and a policy that had not been included with the proposed comprehensive plan in the category of objectives and policies for both urban development areas and rural areas in the Future Land Use Element. New Objective I.15 stated: Residential areas shall be protected from uses which cause or result in greater than average noise, hazards or odors. The associated Policy I.15.1 stated: No medical, bio-hazardous, hazardous, or solid waste shall be disposed of by incineration or by any other method which produces air pollution emissions subject to permitting by the Department of Environmental Regulation within Hamilton County, unless the use or facility was permitted and otherwise legally sited and operated as of July 23, 1991. The supporting data and analysis which the County provided the Department with the adopted comprehensive plan did not address Objective I.15 nor Policy I.15.1, with the exception that residential land use projections are described. The adopted plan provided specific information concerning future residential land use. That description was supported by a residential land use need methodology and analysis of future residential land use needed. As with the proposed plan, the adopted plan included a reference to industrial land use within the Future Land Use Element. In both the proposed plan and the adopted plan in Policy 1.3.1 it was stated: Lands classified as industrial consist of areas used for the manufacturing, assembly processing or storage of products. Industrial development may be approved in areas of the County not designated industrial on the Future Land Use Plan upon submission and approval of a development plan which shall include at the least: an industrial site plan; traffic plan; and traffic impact studies; provisions for the construction and maintenance of a wastewater treatment system meeting requirements of the State of Florida for that use; and a submission of a Future Land Use Plan Map amendment to Industrial classification. Industrial uses shall be limited to an intensity of less than or equal to 1.0 floor area ratio. The data and analysis associated with industrial land use which had been provided with the proposed comprehensive plan remained consistent with the adopted comprehensive plan when describing the methodology for identifying projected industrial land use. The comments in the data and analysis supporting the proposed and adopted plans indicated: Projecting the need for additional acreage for industrial use cannot be approached using a methodology similar to those used for residential and commercial Future Land Use needs. This is due to the fact that there is no direct relationship between population and industrial location. The additional future acreages for industrial location are anticipated to occur on a site specific basis as needed at the time industrial activities are proposed. Within the adopted comprehensive plan, Future Land Use Element related to urban development areas and rural areas is found the general industrial land use classification. The general industrial land use designations are located in the central area of the county to the southwest of the City of Jasper along County Road 249. There is an additional limited industrial land use classification within the urban development area and rural area category. It identifies industrial opportunities at interchanges on Interstate 75. At these interchanges, upon submission of a site plan that comports with development standards, with due regard for safety and adequate access, light industrial development is allowed which does not require an air emission permit from the State of Florida. Industrial land use designations as well as other land use designations were based upon an analysis of the amount and character of undeveloped land in the county, reliable population projections and growth patterns anticipated for the area, together with the availability of the public services to accommodate the projected population. The adopted comprehensive plan includes a Future Land Use Map and Map Series found within the Future Land Use Element of the adopted plan which depicts industrial land use. Intervenors' property carries a general industrial classification in the future land use designation in the adopted plan. Intervenors' property is not located on the Interstate 75 corridor and therefore would not be considered for this special industrial land use classification. The North Central Florida Regional Planning Council (the Council) assisted the County in preparing its proposed and adopted plans. The Council staff were engaged in that process as early as 1986. From that point forward the Council staff conducted field surveys relating to land use, compiled data from existing data sources and reviewed population projections and growth patterns in Hamilton County. The Council staff compiled information concerning public facilities, recreational and solid waste facilities, information relating to physical capacity for those facilities and information concerning the financing of capital projects. In anticipation of the requirements set forth in Section 163.3177(6)(a), Florida Statutes, the Council staff conducted field surveys of existing land use to determine the character of undeveloped land in the county. The staff reviewed the population projections of the University of Florida Bureau of Business and Economic Research. These activities were designed to assist the County in analyzing the amount of land necessary to accommodate projected growth and the availability of public services. The Council staff was responsible for preparing the proposed plan statement related to goals, objectives, and policies. The staff also prepared the Future Land Use Plan Map. The documents prepared by the Council staff were subject to review and workshops were held to consider those matters. Modifications were brought about through public comments presented at the workshops. The Council staff prepared an evaluation, appraisal and review report to examine the success of previously adopted comprehensive plans. Following the conduct of workshops the public sessions for plan adoption were held on June 18, and July 23, 1991. As representative for the County, the Council staff invited the Department to send representatives to attend the public hearing sessions. The Department was represented at those sessions. In the public hearings related to the plan adoption, there was considerable public testimony expressing concern about health and environmental impacts involved with the incineration of bio-medical waste. In particular, remarks were made about air emissions of mercury and dioxins and the disposal of ash residue from the incineration process. Documents were also presented by members of the public who opposed waste incineration. One document was from the United States Environmental Protection Agency, entitled Seminar-Medical and Institutional Waste Incineration: Regulations, Management, Technology, Emissions and Operations. Another document was entitled Hazardous Waste News #82, June 20, 1988, identified as a weekly news and resource for citizens fighting toxins. A third document was entitled "Facts" related to definitions within Section 403.703, Florida Statutes and observations from the author of this document concerning Intervenors intended operations of a bio-medical incineration facility in Hamilton County. Finally, there was a document from the Hamilton County School Board calling for a buffer zone between any school in the county and facilities which incinerated or otherwise disposed of substances through incineration or other disposal means which would create air emissions from the destruction of solid waste, hazardous substances, bio-hazardous waste and biological waste as defined within Section 403.703, Florida Statutes. The Hamilton County School Board also expressed a desire to completely prohibit the incineration or other disposal of those substances which were generated outside Hamilton County. The EPA document spoke in terms of the emissions from incinerators as being particulate and gaseous emissions. The particulate emissions being constituted of char and soot and minerals in the form of metals, silicates and salts. The gaseous emissions referred to in the EPA document were constituted of combustible emissions such as hydrocarbons, carbon monoxide, PCDD and PCDF and noncombustible emissions, such as nitrogen oxides, HCLs, hazardous compounds such as POHCs, products of incomplete combustion such as dioxins, and uncondensed volatile metals in excess air. Dr. Ralph Dougherty, an expert in environmental mass spectrometry, analytical chemistry and the chemistry of waste incineration, provided expert testimony concerning the significance of some of the information provided to the County in its public sessions. This testimony was presented at the administrative hearing. Dr. Dougherty did not attend the public hearing associated with the plan adoption. Dr. Dougherty in addressing the waste stream that is created by bio- medical waste described how the incineration process in destroying polyvinyl chloride, PVC plastic, saran wrap and neoprene converted those materials to chlorinated organics such as dioxin. As Dr. Dougherty established, dioxins are very hazardous substances. Kenneth Krantz appeared for the Intervenors at the public sessions for the plan adoption. At that time Basic Energy Corporation was known as TSI Southeast, Inc. (TSI). He provided written information to the county commissioners concerning the TSI bio-medical waste disposal business intended to be located in Hamilton County. TSI took no issue with Objective I.15 which was adopted on July 23, 1991. Intervenors proposed different text for policy I.15.1 and requested adoption of two additional policies I.15.2 and I.15.3 which would place some restrictions on solid waste disposal but would allow an opportunity for operating the TSI facility in the county. Information provided by Krantz in the public sessions indicated that TSI intended to operate a business to incinerate solid, bio-medical and solid municipal waste, together with a waste recycling area, Pelletizer area and turbine-generator area. Krantz addressed the county commissioners concerning county building permit information about the facility, permitting by the St. Johns River Water Management District and the State of Florida, Department of Environmental Regulation. Information was provided concerning square footage for buildings within the overall TSI facility. Information was provided by TSI concerning the intended pollution control systems as being constituted of fabric filters and dry-lime injection systems, together with a detailed description of pending permit applications before the Department of Environmental Regulation for additional incineration units. Information provided by TSI addressed the expected constituents of the air emissions to include carbon monoxide, volatile organic compounds, nitrogen oxides, organics such as dioxide, sulphur dioxide, hydrogen chloride and particulate matter. A site location map and schematic showing the flow within the waste stream was also provided. TSI also provided information at the public sessions about the Intervenors anticipated emissions rates for two previously permitted units and the third and fourth units that were being considered by the Department of Environmental Regulation. This data about emission rates included a comprehensive listing of anticipated emissions by pollutant type to include projected measurements of omissions for units one and two which would deal with medical waste combustion and units three and four which would deal with medical waste combustion and possibly refuse-derived fuel (RDF). As commented on by members of the public who appeared at the public sessions for adopting the plan, information provided by the Intervenors verified that significant amounts of pollutants would be discharged into the air through Intervenors' operations. TSI provided information concerning the modeling that was done to measure concentration levels for the expected pollutants. Information was provided concerning the incineration process and the manner in which calculations were made concerning expected emissions levels. Information was provided concerning anticipated annual and short term emission rates for the four units intended to be operated by the TSI. The technical information about the intended TSI facility was through documents that appeared to be from an engineering consulting firm. All information provided in the public sessions that has been described was properly available to the county commissioners when adopting the plan. The information provided at the public sessions which has been described was not presented to the Department with the adopted plan. As stated, on July 30, 1991, the County submitted its plan to the Department to determine if the adopted plan was in compliance with the requirements of law. See Section 163.3184(8), Florida Statutes (1991). On September 12, 1991, DCA issued a notice of intent to find the adopted plan, not "in compliance". See Section 163.3184(10), Florida Statutes (1991). Pursuant to that provision, DCA filed a petition with the Division of Administrative Hearings setting forth the reasons for its decision to find the adopted plan not "in compliance". That petition was filed on September 23, 1991. The DCA took no issue with Policies I.15.1 and V.2.13. On February 20, 1992, Intervenors petitioned to intervene in the not "in compliance" case. As identified in the statement of issues, the Intervenors were and continue to be opposed to the adoption of Policies I.15.1 and V.2.13. On March 17, 1992, an order was entered which granted the Intervenors leave to intervene. Intervenors own property in Hamilton County. As contemplated by Section 163.3184(16), Florida Statutes (1993), DCA and the County engaged in settlement discussions. This culminated in a stipulated settlement agreement executed by DCA and County on November 24, 1993. The stipulated settlement agreement is referred to in the statute as a compliance agreement. Intervenors did not join in the settlement. On January 18, 1994, the County adopted the remedial amendments, referred to in the statute as plan amendments pursuant to a compliance agreement called for by the compliance agreement. The remedial plan amendments were submitted to the Department for consideration. On March 10, 1994, DCA issued a cumulative notice of intent addressing the compliance agreement amendments and the plan. DCA gave notice that it attended to find the plan and remedial comprehensive plan amendments/compliance agreement amendments "in compliance" with Sections 163.3184 and 163.3187, Florida Statutes. Notwithstanding that the Intervenors did not submit further pleadings within 21 days of the publication of the cumulative notice of intent, the Intervenors were allowed to proceed with their challenge to the plan that was not the subject of the compliance agreement leading to the compliance agreement amendments.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered finding the Hamilton County comprehensive plan to be "in compliance" with the exception that Policy V.2.13 is only "in compliance" in its latter sentence, the remaining language in Policy V.2.13 is not "in compliance". DONE and ENTERED this 21st day of April, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1995. APPENDIX "A" CASE NO. 91-6038GM The following discussion is given concerning the proposed fact finding by the parties: Intervenors' Facts: Paragraph 1 is subordinate to facts found. The first sentence to Paragraph 2 is contrary to facts found. The remaining sentence is subordinate to facts found. Paragraph 3 is rejected in its suggestion that there is a perpetual ban on bio-hazardous waste incineration. It is otherwise not necessary to the resolution of the dispute. Intervenors' Facts: Paragraphs 1 through 7 are subordinate to facts found. Paragraph 8 is not relevant. Paragraphs 9 through 12 are subordinate to facts found. Paragraph 13 is not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found with the exception that the date of adoption was January 18, 1994. Paragraphs 15 through 22 are subordinate to facts found. Paragraph 23 is not relevant. Paragraph 24 is subordinate to facts found. Paragraph 25 constitutes legal argument. Paragraph 26 is subordinate to facts found. Paragraphs 27 through 31 are not necessary to the resolution of the dispute. Paragraphs 32 through 38 are subordinate to facts found. Paragraphs 39 and 40 are not necessary to the resolution of the dispute. Paragraph 41 is rejected to the extent that it is suggested that it constitutes agency policy. Paragraphs 42 through the first phrase in 49 are subordinate to facts found. The latter phrase in Paragraph 49 is not necessary to the resolution of the dispute. Paragraphs 50 through 58 are subordinate to facts found. Paragraph 59 constitutes legal argument. Paragraphs 60 through 75 are subordinate to facts found. Paragraphs 76 through 82 are rejected as not constituting allowable analysis of data presented in support of the plan adoption. Paragraphs 83 and 84 are not necessary to the resolution of the dispute. Paragraph 85 is subordinate to facts found. Paragraph 86 is not necessary to the resolution of the dispute. Paragraphs 87 through 91 are rejected to the extent that it is suggested that some lesser standard is involved with consideration of data for optional plan elements as opposed to mandatory plan elements. See Section 163.3184(8), Florida Statutes (1991) and Section 120.57(1)(b)15, Florida Statutes (1993). Paragraph 92 is acknowledged but did not form the basis for fact finding in the recommended order. Paragraph 93 is rejected as intended to interpret Policy I.15.1 as an absolute prohibition against waste incineration in the County. Paragraph 94 constitutes legal argument. Paragraphs 95 through 102 are not relevant. Paragraphs 103 through 105 are not necessary to the resolution of the dispute. Paragraphs 106 through 108 are subordinate to facts found with the exception of the rejection of Policy V.2.13 in part. COPIES FURNISHED: David L. Jordan, Esquire Terrell L. Arline, Esquire Suzanne Schmith, Certified Legal Intern Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 John H. McCormick, Esquire Post Office Box O Jasper, FL 32052 William L. Hyde, Esquire Gunster, Yoakley, Valdes-Fauli and Stewart, P.A. 515 North Adams Street Tallahassee, FL 32301 Donald J. Schutz, Esquire Suite 415 535 Central Avenue St. Petersburg, FL 33701 Linda L. Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue The issue in this case is whether the amendments to Miami- Dade County’s Comprehensive Development Master Plan (CDMP), adopted through Ordinance Nos. 08-44 and 08-45, are “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2008).1
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty to review amendments to local comprehensive plans and to determine whether the amendments are “in compliance,” pursuant to Section 163.3184, Florida Statutes. The County is a political subdivision of the State and has adopted a local comprehensive plan that the County amends from time to time. 1000 Friends is a Florida not-for-profit corporation that maintains its headquarters in Tallahassee, Florida. Its corporate purpose is to ensure the fair and effective implementation of the Growth Management Act, Chapter 163, Part II, Florida Statutes, through education, lobbying, research and litigation. 1000 Friends has approximately 3,500 members, 174 of whom live in the County. NPCA is a foreign, not-for-profit corporation that is registered to do business in Florida. Its headquarters are in Washington, D.C. It has a branch office in Hollywood, Broward County, Florida. NPCA’s purpose is to protect and preserve national parks, including Everglades National Park. NPCA has approximately 340,000 members, 1,000 of whom live in the County. Barry White and Karen Esty are residents of the County. Lowe’s is a for-profit corporation that owns and operates a business in the County. David Brown, along with his father and brother, is a co-applicant for the Brown amendment. For the purpose of this Recommended Order, the Department and the Intervenors aligned with the Department will be referred to, collectively, as Petitioners. Standing Lowe’s filed the application with the County that resulted in Ordinance No. 08-44 (Lowe’s Amendment). Lowe’s submitted comments to the County concerning the Lowe’s Amendment during the period of time from the County’s transmittal of the amendment to the County’s adoption of the amendment. Brown filed the application with the County that resulted in Ordinance No. 08-45 (Brown Amendment). Brown resides in the County. Brown is a manager/member of BDG Kendall 172, LLC, which has a contract to purchase the larger of the two parcels on the application site. Brown is also a manager/member of BDG Kendall 162, LLC, which owns and operates a business in Miami-Dade County. Brown submitted comments to the County at the transmittal and adoption hearings. 1000 Friends submitted comments to the County during the period of time from the transmittal of the amendments to their adoption. 1000 Friends presented its comments to the County on behalf of its members who reside in the County. 1000 Friends does not own property or maintain an office in the County. 1000 Friends does not pay local business taxes in the County and did not show that it is licensed to conduct a business in the County. 1000 Friends has engaged in fundraising, lobbying, and litigation in the County. Its activities include efforts to promote growth management, affordable housing, and Everglades restoration. 1000 Friends did not show that its activities in the County subject it to the provisions of the CDMP. NPCA submitted comments to the County during the period of time from the transmittal of the amendments to their adoption. NPCA presented its comments to the County on behalf of NPCA members who reside in the County. NPCA does not own property or maintain an office in the County. No evidence was presented to show that NPCA pays business taxes in the County or that it is licensed to conduct business in the County. NPCA did not show that its activities in the County subject it to the provisions of the CDMP. Barry White and Karen Esty are residents of the County. They submitted comments to the County regarding the amendments during the period of time from the transmittal of the amendments to their adoption. The Amendment Adoption Process The applications which resulted in the Lowe’s and Brown Amendments were submitted to the County during the April 2007 plan amendment cycle. The County’s review process for comprehensive plan amendments includes a public hearing before the community council which has jurisdiction over the area of the County where the affected lands are located. Following the public hearings on the proposed Lowe’s and Brown Amendments, the community councils recommended that the Board of County Commissioners approve the amendments. The County’s Planning Advisory Board also reviews proposed amendments before the transmittal and adoption hearings. Following public hearings on the proposed Lowe’s and Brown Amendments, the Planning Advisory Board recommended that the Board of County Commissioners approve the amendments for transmittal and for adoption. The County planning staff recommended that the proposed amendments be denied and not transmitted to the Department. The principal objection of the planning staff was that the expansion of the Urban Development Boundary (UDB), an aspect of both proposed amendments, was unjustified. In November 2007, the Board of County Commissioners voted to transmit the amendments to the Department. The Department reviewed the proposed amendments and issued its Objections, Recommendations, and Comments (ORC) Report on February 26, 2008. In the ORC Report, the Department stated that expanding the UDB would be internally inconsistent with the CDMP because the need for the expansion had not been demonstrated. In addition the Department determined that the Lowe’s Amendment was inconsistent with CDMP policies regarding the protection of wetlands, and the Brown Amendment was inconsistent with CDMP policies regarding the protection of agricultural lands. When the amendments came before the Board of County Commissioners after the ORC Report in March 2008, the County planning staff recommended that the amendments be denied, repeating its belief that the expansion of the UDB would be inconsistent with the CDMP. Under the County’s Code of Ordinances, an expansion of the UDB requires approval by a two-thirds vote of the Board of County Commissioners. The County adopted the amendments through Ordinances No. 08-44 and 08-45 on April 24, 2008. On April 30, 2008, the Mayor Carlos Alvarez vetoed the ordinances, citing inconsistencies with the UDB policies of the CDMP. His veto was overridden by a two-thirds vote of the Board of County Commissioners on May 6, 2008. On July 18, 2008, the Department issued its Statement of Intent to Find Comprehensive Plan Amendments Not in Compliance. The Lowe’s Amendment The Lowe’s Amendment site consists of two parcels located in close proximity to the intersection of Southwest 8th Street, also known as Tamiami Trail, and Northwest 137th Avenue. The easternmost parcel, Parcel A, is 21.6 acres. The adjacent parcel to the west, Parcel B, is 30.1 acres. Neither parcel is currently being used. About 50 percent of both Parcels A and B are covered by wetlands. The wetlands are partially drained and show encroachment by exotic vegetation, including Melaleuca and Australian pine. The Lowe’s site is located within the Bird Trail Canal Basin, which the CDMP characterizes as containing “heavily impacted, partially drained wetlands.” Both Parcels A and B are currently designated Open Land under the CDMP, with a more specific designation as Open Land Subarea 3 (Tamiami-Bird Canal Basins), and can be used for residences at densities of up to one unit per five acres, compatible institutional uses, public facilities, utility and communications facilities, certain agricultural uses, recreational uses, limestone quarrying, and ancillary uses. East of the Lowe’s site is another parcel owned by Lowe’s that is designated Business and Office and is within the UDB. North and west of the Lowe’s site is Open Land. The Lowe’s site is bordered on the south by Tamiami Trail, a six- lane road. Across Tamiami Trail is land designated Business and Office. The Lowe’s amendment would reclassify Parcel A as Business and Office and Parcel B as Institution, Utilities, and Communications. The Lowe’s Amendment would also extend the UDB westward to encompass Parcels A and B. The Business and Office designation allows for a wide range of sales and service activities, as well as compatible residential uses. However, the Lowe’s amendment includes a restrictive covenant that prohibits residential development. The Institution, Utilities, and Communications land use designation allows for “the full range of institution, communications and utilities,” as well as offices and some small businesses. Parcel A is subject to another restrictive covenant that provides that Lowe’s shall not seek building permits for the construction of any buildings on Parcel A without having first submitted for a building permit for the construction of a home improvement store. The use of Parcel B is restricted to a school, which can be a charter school. If a charter school is not developed on Parcel B, the parcel will be offered to the Miami-Dade County School Board. If the School Board does not purchase Parcel B within 120 days, then neither Lowe’s nor its successors of assigns have any further obligations to develop a school on Parcel B. The Brown Amendment The Brown Amendment involves four changes to the CDMP: a future land use re-designation from “Agriculture” to “Business and Office”; an expansion of the UDB to encompass the Brown site; a prohibition of residential uses on the site; and a requirement that the owner build an extension of SW 172nd Avenue through the site. The Agriculture designation allows agricultural uses and single family residences at a density of one unit per five acres. The proposed Business and Office land use designation allows a wide range of commercial uses, including retail, professional services, and office. Residential uses are also allowed, but the Declaration of Restrictions adopted by the County with the Brown Amendment prohibits residential development. The Brown Amendment site is 42 acres. Some of the site is leased to a tenant farmer who grows row crops. The balance is vacant and not in use. The Brown site has a triangular shape. Along the sloping northern/eastern boundary is Kendall Drive. Kendall Drive is a major arterial roadway, a planned urban corridor, and part of the state highway system. On the site's western boundary is other agricultural land. There is commercial development to the east. Along the southern boundary is the 1200-unit Vizcaya Traditional Neighborhood Development, which is within the UDB. The entirety of the Brown site has been altered by farming activities. In the southwest portion of the site is a four-acre, degraded wetland that is part of a larger 28-acre wetland located offsite. The wetland is not connected to any state waters and the Army Corps of Engineers has not asserted jurisdiction over it. The wetland is not on the map of “Future Wetlands and CERP Water Management Areas” in the Land Use Element of the CDMP. The dominant plants in the wetland are exotic species. There is no evidence that any portion of the site is used by any threatened or endangered species. The Urban Development Boundary and Urban Expansion Area The principal dispute in this case involves the application of Policies LU-8F and LU-8G of the CDMP regarding the expansion of the UDB. Policy LU-8F directs that adequate supplies of residential and nonresidential lands be maintained in the UDB. If the supply of lands becomes inadequate, Policy LU-8G addresses where the expansion of the UDB should occur. The UDB is described in the Land Use Element: The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2015 from areas where it should not occur. Development orders permitting urban development will generally be approved within the UDB at some time through the year 2015 provided that level- of-service standards for necessary public facilities will be met. Adequate countywide development capacity will be maintained within the UDB by increasing development densities or intensities inside the UDB, or by expanding the UDB, when the need for such change is determined to be necessary through the Plan review and amendment process. The UDB promotes several planning purposes. It provides for the orderly and efficient construction of infrastructure, encourages urban infill and redevelopment, discourages urban sprawl, and helps to conserve agricultural and environmentally-sensitive lands. The County only accepts applications for amendments seeking to expand the UDB once every two years, unless they are directly related to a development of regional impact. In contrast, Chapter 163, Florida Statutes, allows two amendment cycles in a calendar year, Amendments that would expand the UDB must be approved by at least two-thirds of the total membership of the Board of County Commissioners. Other types of amendments only require a majority vote of the quorum. Outside the UDB are County lands within the relatively small Urban Expansion Area (UEA), which is described in the CDMP as “the area where current projections indicate that further urban development beyond the 2015 UDB is likely to be warranted some time between the year 2015 and 2025.” The UEA consists of lands that the CDMP directs “shall be avoided” when the County is considering adding land to the UDB. They are (1) future wetlands, (2) lands designated Agriculture, (3) hurricane evacuation areas, and (4) lands that are part of the Comprehensive Everglades Restoration Plan. The “future” wetlands on this list are existing wetland areas delineated by the County on Figure 14 of the Land Use Element. A far larger area of the County, mostly west of the UDB and UEA, consists of lands that the CDMP directs “shall not be considered” for inclusion in the UDB. These are water conservation areas, lands associated with Everglades National Park, the Redland agricultural area, and wellfield protection areas. Policy LU-8F Policy LU-8F of the Land Use Element provides: The Urban Development Boundary (UDB) should contain developable land having capacity to sustain projected countywide residential demand for a period of 10 years after adoption of the most recent Evaluation and Appraisal Report (EAR) plus a 5-year surplus (a total 15-year Countywide supply beyond the date of EAR adoption). The estimation of this capacity shall include the capacity to develop and redevelop around transit stations at the densities recommended in policy LU-7F. The adequacy of non- residential land supplies shall be determined on the basis of land supplies in subareas of the County appropriate to the type of use, as well as the Countywide supply within the UDB. The adequacy of land supplies for neighborhood- and community- oriented business and office uses shall be determined on the basis of localized subarea geography such as Census Tracts, Minor Statistical Areas (MSAs) and combinations thereof. Tiers, Half-Tiers and combinations thereof shall be considered along with the Countywide supply when evaluating the adequacy of land supplies for regional commercial and industrial activities. There is no further guidance in the CDMP for determining the “adequacy of land supplies” with respect to nonresidential land uses. Neither Chapter 163, Florida Statutes, nor Florida Administrative Code Chapter 9J-5 requires that local governments use a particular methodology to determine the adequacy of nonresidential land supplies. The County’s usual methodology for determining need is described in the Planning Considerations Report that the County planning staff prepared for the 2007 amendment cycle. A report like this one is prepared by the staff for each amendment cycle to evaluate the adequacy of the CDMP to accommodate growth and to evaluate pending amendment applications. The County compares a proposed use to its immediate surroundings and the broader area of the County in which the proposed use is located. The basic geographic unit used in the County’s need analysis is the Minor Statistical Area (MSA). Larger planning areas, called Tiers, are groupings of MSAs. The County is divided into 32 MSAs and four Tiers. The Lowe’s Amendment site is in MSA 3.2, but it is on the border with MSA 6.1, so the two MSAs were consolidated for the County’s need analysis regarding the Lowe’s Amendment, even though MSA 3.2 is in the North Central Tier and MSA 6.1 is in the South Central Tier. The Brown Amendment is in MSA 6.2, but it is close to MSA 6.1, so the County combined the two MSAs for its need analysis for the Brown Amendment. Both MSAs are in the South Central Tier. The Planning Considerations Report contains a 2007 inventory of commercial land. The only vacant land used in the analysis of available commercial land supply was land zoned for business, professional office, office park, or designated Business and Office on the Land Use Map. Although it is stated in the Planning Considerations Report that lands zoned or designated for industrial uses are often used for commercial purposes, this situation was not factored into the calculation of the available supply of commercial lands. The County also excluded any supply that could be gained from the redevelopment of existing sites. Petitioners contend, therefore, that the County’s need for commercial land is less than the planning staff calculated in the Planning Considerations Report. On the other hand, Respondents contend that the County’s need for commercial land is greater than the planning staff calculated in the Planning Considerations Report because the County planning staff did not apply a “market factor” for commercial lands as it does for residential lands. A market factor is considered by some professional planners to be appropriate for commercial land uses to account for physical constraints and other factors that limit the utilization of some vacant parcels, and to prevent situations where the diminished supply of useable parcels causes their prices to rise steeply. The CDMP recognizes the problem in stating that: impediments can arise to the maximum utilization of all lands within the boundaries [of the UDB]. In some urbanized areas, it may be difficult to acquire sufficiently large parcels of land. In other areas, neighborhood opposition to proposed developments could alter the assumed density and character of a particular area. The County used a market factor of 1.5 (50 percent surplus) to determine the need for residential land. The County did not use a market factor in its analysis of the need for commercial land. The Department’s expert planning witness, Mike McDaniel, testified that the Department generally supports use of a 1.25 allocation (25 percent surplus). The County’s most recent UDB expansions for nonresidential uses (other than Lowe’s and Brown) were the Beacon Lakes and Shoppyland amendments in 2002. The Beacon Lakes and Shoppyland UDB expansions were approved despite the fact that the County did not project a need for more industrial land within the planning horizon. The need determinations for these amendments were not based on the use of a market factor, but on a percieved2`` need for the particular land uses proposed – warehouses and related industrial uses on large parcels to serve the Miami International Airport and the Port of Miami. The evidence indicates that the County’s exclusion from its analysis of industrial lands that can be used for commercial purposes, and additional commercial opportunities that could be derived from the redevelopment of existing sites, is offset by the County’s exclusion of a market factor. If the supply of commercial land had been increased 25 percent to account for industrial lands and redevelopment, it would have been offset by a 1.25 market factor on the demand side. The calculations made by the County in its Planning Considerations Report would not have been materially different. The Planning Considerations Report analyzes commercial demand (in acres) through the years 2015 and 2025, and calculates a “depletion year” by MSA, Tier, and countywide. A depletion year is the year in which the supply of vacant land is projected to be exhausted. If the depletion year occurs before 2015 (the planning horizon for the UDB), that is an indication that additional lands for commercial uses might be needed. The County planning staff projected a countywide depletion year of 2023, which indicates there are sufficient commercial lands in the County through the planning horizon of 2015. The County then projected the need for commercial land by MSA and Tier. MSA 3.2, where the Lowe’s site is located, has a depletion year of 2025, but when averaged with MSA 6.1’s depletion years of 2011, results in an average depletion year of 2018. The North Central Tier, in which the Lowe’s Amendment site is located, has a depletion year of 2023. The County’s depletion year analysis at all three levels, MSA, Tier, and countywide, indicates no need for more commercial lands in the area of the Lowe’s site. MSA 6.2, where the Brown site is located, has a depletion year of 2017, but when combined with MSA 6.1’s depletion of 2011, results in an average depletion year for the two MSAs is 2014. The South Central Tier, in which the Brown Amendment site is located, has a depletion year of 2014. Therefore, the County’s depletion year analysis, at the MSA and Tier levels, indicates a need for more commercial lands in the area of the Brown site. The County also analyzed the ratio of commercial acres per 1,000 persons by MSA, Tier, and county-wide. The countywide ratio is not a goal that the County is seeking to achieve for all Tiers and MSAs. However, if a Tier or MSA shows a ratio substantially lower than the countywide ratio, that MSA or Tier might need more commercial lands. The countywide ratio of commercial lands per 1,000 persons is projected to be 6.1 acres per 1,000 persons in 2015. MSA 3.2, in which the Lowe’s site is located, has a ratio of 11.3 acres per 1,000 persons. MSA 6.1 has a ratio of 2.6 acres. The average for the two MSAs is 6.95 acres. The ratio for all of the North Central Tier is 6.3 acres per 1,000 persons. Therefore, a comparison of the countywide ratio with the MSAs and Tier where the Lowe’s site is located indicates there is no need for additional commercial lands in the area of the Lowe’s site. MSA 6.2, where the Brown site is located, has a ratio of 4.1 acres per 1,000 persons. When combined with MSA 6.1’s ratio of 2.6 acres, the average for the two MSAs is 3.35 acres. The ratio for all of the South Central Tier is 4.5 acres per 1,000 persons. Therefore, a comparison with the countywide ratio of 6.1 acres indicates a need for additional commercial lands in the area of the Brown site. The County’s need analysis treated the Kendall Town Center as vacant (i.e., available) commercial land, but the Kendall Town Center is approved and under construction. If the Kendall Town Center had been excluded, the County’s projected future need for commercial land in the area of the Brown site would have been greater. The Planning Considerations Report does not discuss parcel size in its commercial need analysis. Lowe’s contends that the County should have considered whether there is a need for larger “community commercial” uses in the area of the Lowe’s site. Policy LU-8F refers only to the need to consider (by “Tiers, Half-Tiers and combinations thereof”) the adequacy of land supplies for “regional commercial activities.” Lowe’s planning expert testified that there are few undeveloped commercial parcels in MSAs 3.2 and 6.1 that are ten acres or more, or could be aggregated with contiguous vacant parcels to create a parcel bigger than ten acres. Lowe’s submitted two market analyses for home improvement stores, which conclude that there is a need for another home improvement store in the area of the Lowe’s site. The market analyses offered by Lowe’s differ from the County’s methodology, which focuses, not on the market for a particular use, but on the availability of commercial lands in appropriate proportion to the population. Even when it is reasonable for the County to consider the need for a unique use, the County’s focus is on serving a general public need, rather than on whether a particular commercial use could be profitable in a particular location. Some of the assumptions used in the market analyses offered by Lowe’s were unreasonable and biased the results toward a finding of need for a home improvement store in the study area. The more persuasive evidence shows that there is no need for more commercial land, and no need for a home improvement store, in the area of the Lowe’s site. Lowe’s Parcel B is proposed for use as a school. The elementary, middle and high schools serving the area are over- capacity. Lowe’s expects the site to be used as a charter high school. Using an inventory of lands that was prepared by the County staff, Lowe’s planning expert investigated each parcel of land located within MSAs 3.2 and 6.1 that was over seven acres2 and determined that no parcel within either MSA was suitable for development as a high school. The record is unclear about how the Lowe’s Amendment fits into the plans of the County School Board. The proposition that there are no other potential school sites in the area was not firmly established by the testimony presented by Lowe’s. The need shown for the school site on Parcel B does not overcome the absence of demonstrated need for the Business and Office land use on Parcel A. It is beyond fair debate that that the Lowe’s Amendment is inconsistent with Policy LU-8F. The County’s determination that the Brown Amendment is consistent with Policy LU-8F is fairly debatable. Policy LU-8G Policy LU-8GA(i) identifies lands outside the UDB that “shall not be considered for inclusion in the UDB. Policy LU- 8G(ii) identifies other lands that “shall be avoided,” including (1) future wetlands, (2) lands designated Agriculture, (3) hurricane evacuation areas, and (4) lands that are part of the Comprehensive Everglades Restoration Plan. A peculiarity of the UEA is that it is composed entirely of lands that “shall be avoided” when the County considers adding lands to the UDB. The Department contends that “shall be avoided” means, in this context, that the County must make “a compelling showing that every other option has been exhausted” before the UDB can be expanded. However, the CDMP does not express that specific intent. The CDMP does not provide any direct guidance about how compelling the demonstration must be to expand the UDB. Policies LU-8F and LU-8G appear to call for a balancing approach, where the extent of the need for a particular expansion must be balanced against the associated impacts to UEA lands and related CDMP policies. The greater the needs for an expansion of the UDB, the greater are the impacts that can be tolerated. The smaller the need, the smaller are the tolerable impacts. Because the need for the Lowe’s Amendment was not shown, the application of the locational criteria in Policy LU- 8G is moot. However, the evidence presented by Lowe’s is addressed here. Within the meaning of Policy LU-8G(ii)(a), the wetlands that “shall be avoided” are those wetlands that are depicted on the Future Wetlands Map part of the Land Use Element of the CDMP. About 50 percent of the Lowes site is covered by wetlands that are on the Future Wetlands Map. Petitioners speculated that the construction of a Lowe’s home improvement store and school on the Lowe’s site could not be accomplished without harm to the wetlands on the site, but they presented no competent evidence to support that proposition. The wetland protections afforded under the environmental permitting statutes would not be affected by the Lowe’s Amendment. Nevertheless, this is a planning case, not a wetland permitting case. It is a well-recognized planning principle that lands which have a high proportion of wetlands are generally not suitable for land use designations that allow for intense uses. The Lowe’s Amendment runs counter to this principle. Policy LU-8F(iii) identifies areas that “shall be given priority” for inclusion in the UDB: Land within Planning Analysis Tiers having the earliest projected supply depletion year; Lands contiguous to the UDB; Locations within one mile of a planned urban center or extraordinary transit service; and Lands having projected surplus service capacity where necessary services can be readily extended. The Lowe’s site satisfies all but the first criterion. The Lowe’s site is in the Tier with the latest projected supply depletion year. It is beyond fair debate that that the Lowe’s Amendment is inconsistent with Policy LU-8G. Because a reasonable showing of need for the Brown Amendment was shown, it is appropriate to apply the locational criteria of Policy LU-8G. The Brown Amendment would expand the UDB into an area of the UEA that is designated Agriculture. The single goal of the CDMP’s Land Use Element refers to the preservation of the County’s “unique agricultural lands.” The CDMP refers elsewhere to the importance of protecting “viable agriculture.” Brown argued that these provisions indicate that the County did not intend to treat all agricultural lands similarly, and that agricultural activities like those on the Brown site, that are neither unique nor viable, were not intended to be preserved. Petitioners disagreed. The County made the Redland agricultural area one of the areas that “shall not be considered” for inclusion in the UDB. Therefore, the County knew how to preserve “unique” agricultural lands and prevent them from being re-designated and placed in the UDB. The only evidence in the record about the economic “viability” of the current agricultural activities on the Brown site shows they are marginally profitable, at best. The Brown site is relatively small, has a triangular shape, and is wedged between a major residential development and an arterial roadway, which detracts from its suitability for agricultural operations. These factors also diminish the precedent that the re-designation of the Brown site would have for future applications to expand the UDB. The Brown site satisfies all of the criteria in Policy LU-8G(iii) to be given priority for inclusion in the UDB. The County’s determination that the Brown Amendment is consistent with Policy LU-8G is fairly debatable. Policy EDU-2A Policy EDU-2A of the CDMP states that the County shall not purchase school sites outside the UDB. It is not clear why this part of the policy was cited by Petitioners, since the Lowe’s Amendment would place Parcel B inside the UDB. Policy EDU-2A also states that new elementary schools “should” be located at 1/4 mile inside the UDB, new middle schools “should” be located at least 1/2 mile inside the UDB, and new high schools “should” be located at least one mile inside the UDB. The policy states further that, “in substantially developed areas,” where conforming sites are not available, schools should be placed as far as practical from the UDB. Petitioners contend that the Lowe’s Amendment is inconsistent with Policy EDU-2A because Parcel B, the school site in the Lowe’s Amendment, would be contiguous to the UDB if the Lowe’s Amendment were approved. However, when a policy identifies circumstances that allow for an exception to a stated preference, it is necessary for challengers to show that the exceptional circumstances do not exist. It was Petitioners’ burden to demonstrate that there were conforming school sites farther from the UDB in the area of the Lowe’s site. Petitioners did meet their burden. The County’s determination that the Lowe’s Amendment is consistent with Policy EDU-2A is fairly debatable. Urban Sprawl 1000 Friends and NPCA allege that the Brown and Lowe’s Amendments would encourage the proliferation of urban sprawl. The Department did not raise urban sprawl as an “in compliance” issue. Florida Administrative Code Rule 9J-5.006(5)(g) identifies 13 “primary indicators” of urban sprawl. The presence and potential effects of multiple indicators is to be considered to determine “whether they collectively reflect a failure to discourage urban sprawl.” Fla. Admin. Code R. 9J- 5.006(5)(d). Indicator 1 is designating for development “substantial areas of the jurisdiction to develop as low- intensity, low-density, or single use development or uses in excess of demonstrated need.” It was found, above, that the County had a reasonable basis to determine there was a need for the Brown Amendment, but not for the Lowe’s Amendment. Therefore, this indicator is triggered only by the Lowe’s Amendment. Indicator 2 is designating significant amounts of urban development that leaps over undeveloped lands. The facts do not show that undeveloped lands were leaped over for either of the amendments. Indicator 3 is designating urban development “in radial, strip, isolated, or ribbon patterns.” The Lowe’s and Brown Amendments do not involve radial or isolated development patterns. What would constitute a “ribbon” pattern was not explained. Not every extension of existing commercial uses constitutes strip sprawl Other factors need to be considered. For example, both the Lowe’s and Brown sites are at major intersections where more intense land uses are commonly located. Under the circumstances shown in this record, this indicator is not triggered for either amendment. Indicator 4 is premature development of rural land that fails to adequately protect and conserve natural resources. This indicator is frequently cited by challengers when an amendment site contains wetlands or other natural resources, without regard to whether the potential impact to these resources has anything to do with sprawl. In the area of the Lowe’s site, the UDB generally divides urbanized areas from substantial wetlands areas that continue west to the Everglades. The Lowe’s Amendment intrudes into an area dominated by wetlands and, therefore, its potential to affect wetlands is an indication of sprawl. In the area of the Brown Amendment, the UDB generally separates urbanized areas from agricultural lands that already have been substantially altered from their natural state. The Brown Amendment invades an agricultural area, not an area of natural resources. Therefore, the potential impacts of the Brown Amendment on the small area of degraded wetlands on the Brown site do not indicate sprawl. Indicator 5 is failing to adequately protect adjacent agricultural areas and activities. Because this indicator focuses on “adjacent” agricultural areas, it is not obvious that it includes consideration of effects on the amendment site itself. If this indicator applies to the cessation of agricultural activities on the Brown site, then the Brown Amendment triggers this primary indicator. If the indicator applies only to agricultural activities adjacent to the Brown site, the evidence was insufficient to show that this indicator is triggered. Indicators 6, 7, and 8 are related to the orderly and efficient provision of public services and facilities. Urban sprawl is generally indicated when new public facilities must be created to serve the proposed use. Petitioners did not show that new public facilities must be created to serve the Lowe’s or Brown sites. The proposed amendments would maximize the use of existing water and sewer facilities. Petitioners did not show that the amendments would cause disproportionate increases in the costs of facilities and services. Indicator 9 is failing to provide a clear separation between rural and urban uses. The Lowe’s Amendment would create an irregular and less clear separation between urban and rural uses in the area and, therefore, the Lowe’s Amendment triggers this indicator. The Brown Amendment does not trigger this indicator because of it is situated between the large Vizcaya development and Kendall Drive, a major arterial roadway. The Brown Amendment would create a more regular separation between urban and rural uses in the area. Indicator 10 is discouraging infill or redevelopment. The CDMP delineates an Urban Infill Area (UIA) that is generally located east of the Palmetto Expressway and NW/SW 77th Avenue. Petitioners did not demonstrate that the Brown and Lowe’s Amendments discourage infill within the UIA. Petitioners did not show how any particular infill opportunities elsewhere in the UDB are impaired by the Lowe’s and Brown Amendments. However, the expansion of the UDB would diminish, at least to a small degree, the incentive for infill. This indicator, therefore, is triggered to a small degree by both amendments. The CDMP promotes redevelopment of buildings that are substandard or underdeveloped. Petitioners did not show how any particular redevelopment opportunities are impaired by the Lowe’s and Brown Amendments. However, the expansion of the UDB would diminish, at least to a small degree, the incentive to redevelop existing properties. This indicator, therefore, is triggered to a small degree by both amendments. Indicator 11 is failing to encourage or attract a functional mix of uses. Petitioners failed to demonstrate that this primary indicator is triggered. Indicator 12 is poor accessibility among linked or related uses. No evidence was presented to show that this indicator would be triggered. Indicator 13 is the loss of “significant” amounts of open space. These amendments do not result in the loss of significant amounts of open space, whether measured by acres, by the percentage of County open lands converted to other uses, or by any specific circumstances in the area of the amendment sites. Evaluating the Lowe’s Amendment using the primary indicators of urban sprawl and the criteria in Florida Administrative Code Rule 9J-5.006(5)(h) through (j), it is found by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment fails to discourage the proliferation of urban sprawl. Evaluating the Brown Amendment using the primary indicators of urban sprawl and the criteria in Florida Administrative Code Rule 9J-5.006(5)(h) through (j), it is found by a preponderance of the evidence that the County’s adoption of the Brown Amendment does not fail to discourage the proliferation of urban sprawl. Land Use Analysis The Department claims that the Lowe’s and Brown Amendments are inconsistent with Florida Administrative Code Rule 9J-5.006(2)(c), which requires that the land use element of a comprehensive plan be based on an analysis of the amount of land needed to accommodate projected population. The Department believes the analyses of need presented by Lowe’s and Brown’s consultants were not professionally acceptable. Petitioners proved by a preponderance of the evidence that there was no need for the Lowe’s Amendment. Therefore, the Lowe’s Amendment is inconsistent with Florida Administrative Code Rule 9J-5.006(2)(c). A preponderance of competent, substantial, and professionally acceptable evidence of need, in conformance with and including the methodology used by the County planning staff, demonstrated that the Brown Amendment is consistent with Florida Administrative Code Rule 9J-5.006(2)(c).3 Florida Administrative Code Chapter 9J-5 - Natural Resources Petitioners contend the Lowe’s Amendment is inconsistent with the provisions of Florida Administrative Code Chapter 9J-5, which require that the land use element of every comprehensive plan contain a goal to protect natural resources, and that every conservation element contain goals, objectives, and policies for the protection of vegetative communities, wildlife habitat, endangered and threatened species, and wetlands. Petitioners failed to prove by a preponderance of the evidence that the CDMP does not contain these required goals, objectives, and policies. Therefore, Petitioners failed to prove that the Lowe’s amendment is inconsistent with these provisions of Florida Administrative Code Chapter 9J-5.4 The State Comprehensive Plan Petitioners contend that the Lowe’s and Brown amendments are inconsistent with several provisions of the State Comprehensive Plan. Goal (9)(a) of the State Comprehensive Plan and its associated policies address the protection of natural systems. Petitioners contend that only the Lowe’s Amendment is inconsistent with this goal and its policies. For the reasons stated previously, Petitioners showed by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its policies. Goal (15)(a) and its associated policies address land use, especially development in areas where public services and facilities are available. Policy (15)(b)2. is to encourage a separation of urban and rural uses. Because the Lowe’s Amendment is inconsistent with Policies LU-8F and LU-8G of the CDMP, the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and policy. For the reasons stated above, Petitioners failed to show by a preponderance of the evidence that the County’s adoption of the Brown Amendment is inconsistent with this goal and its associated policies Goal (16)(a) and its associated policies address urban and downtown revitalization. Although the expansion of the UDB diminishes the incentive to infill or redevelop, Petitioners did not show this effect, when considered in the context of the CDMP as a whole and the State Comprehensive Plan as a whole, impairs the achievement of this goal and its associated policies to an extent that the proposed amendments are inconsistent with this goal of the State Comprehensive Plan and its associated policies. Goal (17)(a) and its associated policies address the planning and financing of and public facilities. For the reasons stated previously, Petitioners failed to prove by a preponderance of the evidence that the County’s adoption of the proposed amendments is inconsistent with this goal and its associated policies. Goal (22)(a) addresses agriculture. Policy(b)1. is to ensure that state and regional plans are not interpreted to permanently restrict the conversion of agricultural lands to other uses. This policy recognizes that agricultural landowners have the same right to seek to change the use of their lands, and that engaging in agricultural activities is not a permanent servitude to the general public. The policies cited by Petitioners (regarding the encouragement of agricultural diversification, investment in education and research, funding of extension services, and maintaining property tax benefits) are not affected by the Brown Amendment. For the reasons stated above, Petitioners failed to prove by a preponderance of the evidence that the County’s adoption of the Brown Amendment is inconsistent with this goal and its associated policies. Goal (25)(a) and its associated policies address plan implementation, intergovernmental coordination and citizen involvement, and ensuring that local plans reflect state goals and policies. Because the Lowe’s Amendment is inconsistent with Policies LU-8F and LU-8G of the CDMP, and was found to contribute to the proliferation of urban sprawl, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its associated policies. Petitioners proved by a preponderance of the evidence that when the State Comprehensive Plan is construed as a whole, the County’s adoption of the Lowe’s Amendment is inconsistent with the State Comprehensive Plan. Petitioners failed to prove by a preponderance of the evidence that when the State Comprehensive Plan is construed as a whole, the County’s adoption of the Brown Amendment is inconsistent with the State Comprehensive Plan.. Strategic Regional Policy Plan Petitioners claim that the Lowe’s Amendment is inconsistent with Goals 11, 12, and 20 of the Strategic Regional Policy Plan of the South Florida Regional Planning Council (SFRPC) and several policies associated with these goals. The SFRPC reviewed the proposed Brown Amendment and found it was generally consistent with the Strategic Regional Policy Plan. Goal 11 and its associated policies encourage the conservation of natural resources and agricultural lands, and the use of existing and planned infrastructure. For the reasons stated previously, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its associated policies. Goal 12 and its associated policies encourage the retention of rural lands and agricultural economy. The CDMP encourages the retention of rural lands and agricultural economy. Because it was found that the Lowe’s Amendment was inconsistent with Policies LU-8F and LU-8G, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment was inconsistent with this regional goal and its policies. Goal 20 and its associated policies are to achieve development patterns that protect natural resources and guide development to areas where there are public facilities. Because it was found that there is no need for the Lowe’s Amendment and that it constitutes urban sprawl, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with these regional goal and policies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that: Ordinance No. 08-44, the Lowe’s Amendment, is not in compliance, and Ordinance No. 08-45, the Brown Amendment, is in compliance. DONE AND ENTERED this 11th day of May, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2009.
